The issue of trademark infringement in pay per click (PPC) advertising normally arises when a company bids or purchases advertisements that are triggered when that company’s competitor’s name is searched. For example, “ABC Auto,” an auto body repair shop, could purchase advertisements from a search engine provider to show up when a user searches for “123 Auto,” ABC’s main competitor. This issue has prompted litigation between companies and search engine providers as well as between companies and their competitors.
While there would likely be a trademark infringement if ABC Auto placed 123 Auto’s name within their advertising copy, courts have been inconsistent in deciding whether a trademark infringement exists if ABC merely purchases advertisements that are triggered when “123 Auto” is searched.
A real life example – a Google search for “GEICO” may return an advertisement for AAA. Here, it appears that AAA has bid on the keyword “GEICO” – that is, AAA’s advertisement is triggered when a user searches for “GEICO.” Both AAA and GEICO sell automobile insurance and it seems that AAA has bid on advertisements that are displayed when a user searches for “GEICO.”
These issues are confusing and there are inconsistent holdings in cases around the country. If you are involved in a keyword trademark infringement lawsuit, it is important to seek an experienced internet lawyer with relevant trademark litigation experience. There may be many crucial factual and legal issues that can strengthen a Plaintiff's claim or bolster a trademark defense. For example, a recent decision in the 9th Circuit Court of Appeals has greatly strengthened defenses to trademark infringement claims based upon advertising in the Google Adwords network. This is good news for affiliate marketers and publishers who are sued for trademark infringement.