Online targeted advertising, such as Google’s Adwords, uses potential customer demographics and behaviour online to specifically target brands, products and services to that individual. When using these services, a business can purchase advertising rights to certain searched words and locations and geographical locations. As courts around the world are finding, many businesses are choosing to use their competitor’s trademark in addition to their own for keyword searches that will trigger their own advertisement to be shown. Depending on where you are advertising and targeting, different rules and judgments will apply to what situations use of a competitor’s trademark as a keyword to activate your advertisement is allowed, because believe it or not, it isn’t always against the law.

In Australia, a high court decision of Google v. ACCC found that Google itself wasn’t responsible if an Adwords customer used an infringing trademark however, did not expand on whether or not the Adwords customer would be held liable for damages if using an infringing trademark.

In the UK, two cases have shone light on situations when it is legal and illegal to use a competitor’s trademark in online targeted advertising. The Interflora case gave a more specific guide in the case of business networks. In this case, Interflora is a vast network of florists that trade under individual names but all are part of the Interflora network. M&S, not a part of the Interflora network of florists, used the Interflora trademark as a keyword indicator for their advertisement. The court found that because of the nature of the business network, it was misleading to the customers that they did not indicate that they were not a part of the Interflora network and thus, the use of the trademark was illegal. In a case involving Amazon.co.uk and Lush, Amazon used Lush’s trademark in Google Adword advertising suggestive that Amazon had for purchase Lush products. The court determined that the average customer would not be able to ascertain without difficulty that the Amazon goods did not originate from Lush.

Whilst these decisions are based on different sets of laws, they do help to guide future customers of such advertising companies on the best manner in which to make use of trademarks. If you are advertising using Google Adwords or a similar company and want to get the most from your advertising or are unsure if your advertising constitutes a trademark infringement, or if you have found that a competing business has been using your trademark then please contact us so that we examine the situation and advise you further.