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US court orders online advertiser to use 'negative keywords'

No Orion, Orion No

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A US court has ordered a company to use 'negative keywords' to avoid being associated with another firm's trade mark. The innovative order was one of a series of measures ordered by the judge.

Orion Bancorp took Orion Residential Finance (ORF) to court in Florida over ORF's use of the word 'Orion' in relation to financial services and products, arguing that it had used the term since 2002 and had held a trade mark for it since then.

ORF offered some similar services to Orion, mostly related to housing finance. It was ordered by the US District Court for the Middle District of Florida from to refrain "from any and all use of the term Orion, Orion Residential Finance, or any other confusingly similar term".

The judge in the case went further, though, restraining ORF from "purchasing or using any form of advertising including keywords or 'adwords' in internet advertising containing any mark incorporating Plaintiff’s Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term 'Orion' as negative keywords or negative adwords in any internet advertising purchased or used".

Keyword advertising is the display of adverts on search results pages which are triggered by the use of a certain term in the search itself.

By 'negative adword', the judge is referring to the fact that keyword advertising systems allow someone to instruct the system never to display their advert when a certain term is searched for, as well as to pay to have their ad displayed when a certain term is searched for. Google, which runs the market-leading AdWords system, calls them 'Negative Keywords'. In Yahoo!'s equivalent system, advertisers can list terms as 'Excluded Words'.

Orion Bancorp took the case over the domain name orionresidentialfinance.com, but took a general trade mark case rather than a specific domain name case to the World Intellectual Property Organisation (WIPO)'s dispute resolution service.

The ruling was a default judgment, since ORF did not submit an opposing case, though it was represented by a lawyer in the hearing itself.

The judge said that ORF "is and has been actively engaged in the business of offering to the consuming public financial and real estate related services utilizing the term ORION or various iterations thereof, including use in interstate commerce, on various signs, advertising, slogans, promotional material, a top level domain name at www.orionresidentialfinance.com and other matters containing the term “Orion”, all without Plaintiff’s authorization or consent".

See: The ruling (9-page / 29KB PDF)

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OUT-LAW.COM is part of international law firm Pinsent Masons.

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