Google revises its keywords policy

Following recent caselaw, Google has announced that it intends to make two significant revisions to its adwords policy. The revisions, which will allow advertisers to use other businesses' trade marks (i) as keywords throughout the EU and EFTA and (ii) in the ad text itself in certain circumstances in the UK, Ireland and Canada, will come into effect on 14 September 2010. Further details about the changes and the practical implications are set out below.

The revised policy

Keywords - EU & EFTA
Bringing the policy into line with current practice in a number of other countries, including the UK, Ireland and the USA, advertisers will now be able to use other businesses' trade marks as keywords (i.e. words which generate sponsored links) throughout the EU and EFTA. In other words, brand owners will no longer be able to challenge, as of right, the use of their brands as key words by unauthorised third parties, even competitors.

However, brand owners will be able to complain about such use if they feel that it leads to a specific ad text which confuses users about the origin of the advertised goods and services. Following a complaint, Google will conduct a limited investigation and, if it deems that the ad text is confusing, it will remove the offending advert.

Ad text - the UK, Ireland & Canada
In the UK, Ireland and Canada, the policy revisions go even further. Advertisers will also be able to use other businesses' trade marks in the ad text itself if certain conditions are met, namely if:

1. The advertiser uses the term in a descriptive or generic way and not in reference to the trade mark owner or the goods or services corresponding to the trade mark.
2. The advertiser sells goods and services corresponding to the trade mark (i.e. resellers, whether authorised or not).
3. The advertiser sells components, replacement parts or compatible products corresponding to the trade mark.
4. The advertiser is an informational site, the primary purpose of which is to provide non-competitive and informative details about the goods or services corresponding to the trade mark term. Additionally, the advertiser may not sell or facilitate the sale of the goods or services of a competitor of the trademark owner.

In each case, the primary purpose of the advertiser's site must be to provide non-competitive and informative details about the goods or services corresponding to the trade mark term. Accordingly, using the trade marked term in a competitive, critical or negative way will not be permitted. In the case of (ii) and (iii) above, the landing page of the advert must also clearly demonstrate that a user is able to purchase from the advertiser the goods or services or components, replacement parts or compatible products corresponding to the trade mark used.

The revised policy, which has existed in the USA since June 2009, will only apply to adverts targeted to the UK, Ireland and Canada. If a brand owner feels that a particular advert does not comply with Google's policy, it may report it using Google's online complaint form. Google will then review the relevant advert and remove any which do not comply with the revised policy

Practical implications

What this means in practice is that:

1. Advertisers (such as unauthorised resellers, aggregator sites and department stores) will no doubt grab the opportunity to refer to third parties' trade marks in their ad text (rather than making the text generic, as they have had to do to date) in the UK, Ireland and Canada. Doing so will drive traffic to their web-sites, meaning better click through rates, which will improve their quality score and make advertising on key terms a lot more affordable.. No doubt illegitimate advertisers, such as those selling counterfeit goods, will also take advantage of the new policy in the hope of "flying under the radar".
2. The onus will be on brand owners to police the use of their trade marks as key words across all EU and EFTA countries and their use in ad text in the UK, Ireland and Canada.

For further information on these changes, please contact Jason Rawkins.

Lawyers Jason Rawkins