PPC Ads Face A New Trademark Limitation

By Michael A. Goldstein

A federal court ruled last week that it is not only a trademark violation any longer to use another company’s trademark to deceive search engine users in the paid ad headline. The court has further ruled, that you can not purchase a trademark as a keyword to bring up your paid listing on Google, Yahoo, MSN and other search engines. This decision stemmed from a national jewelry company, who bid on the term, “dating ring” to bring up their ad for the sale of the companies own diamond rings. The problem was that another company already had the trademark to the term “The Dating Ring”. When this term was entered by users of the search engines, the national company’s ad came up for the sale of rings.

The defendant argued it never placed the trademarked term on any of its products or used the term “dating ring” on its Web site. Unfortunitly for the company, they did use the term in the content of their ad.

This ruling makes the practice of going after your competitors name very costly now. The issues as I see it may become the inability to use common terms that the causal user may search by, where they do not even know it is a trademark. In this case illustrated, the term, “dating ring” seems rather innocent to me. I had no idea there was even a company with that name. The law provides protection for companies name as it is used in commerce. However, when a company chooses such a general term for a name and does not have a large presence in the economy or even in the specific industry it conducts business, and then it seems unfair to require every company bidding on key words to conduct a trademark search for each and every term they will purchase. This type of investigation can prove to be most costly, where it is a standard practice in the P.P.C (pay per click) world to buy upwards of two to three thousand terms know as long tail terms, to bring in as many visitors as possible. The goal is of course to make a sale, collect information or what ever the desired conversion for the site may be. However, just because someone uses their web site in commerce and has purchased a term, that has a very plain or simple meaning, is not evidence that such a person or company intended to violate a small unknown companies trademark.

This article was written by Michael Goldstein for the Law Office of Goldstein and Clegg. He graduated from the University of Massachusetts - Amherst, Deans List, with a Bachelors of Art in Finance and Operations Management in 2000.


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