Microsoft won't pursue keyword trade mark users in US
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Microsoft will no longer investigate complaints that words used to trigger search adverts constitute trade mark infringement in the US.
The change to its search advert policy in the US mirrors Google's existing policy.
The rules governing search adverts in the UK remain unchanged and forbid the use of keywords in a way that infringes trade mark law.
Keywords are terms which companies bid on so that their adverts appear when users of search engines search for that word or phrase. Trade mark owners have sought to have courts rule that one company using another's trade mark as an ad trigger breaches trade mark law.
Those companies have been largely unsuccessful. A number of US lawsuits have failed, and in a case involving Louis Vuitton Moet Hennessy (LVMH), the European Court of Justice (ECJ) has ruled that trade mark rights are only infringed by ads that cause confusion about the identity of the advertiser.
Eric Goldman, a law professor at Santa Clara University School of Law in the US, reported the change to Microsoft's US policies for its adCenter search ads system.
"Starting March 3, 2011, adCenter will no longer review trademark keyword complaints. However, adCenter will continue to investigate brand owner complaints related to trademark use in ad text," said an email from Microsoft, according to Goldman.
Microsoft's policy for the US states that it will still investigate complaints about the misuse of trade marked terms in the text of an advert.
The company's UK policy says that it will still look into UK instances of trade mark use in keywords.
"You may not bid on as a keyword, or use in the content of your ads, any term whose use would infringe the trademark of any third party or otherwise be unlawful or in violation of the rights of any third party," it said.
The European Parliament recently adopted a resolution calling for search engine companies to be prevented from allowing one company to bid on keywords that were trade marked by another company.
"[The Commission should] modify the limited liability regime for information society services in order to make the sale by search engines of registered brand names as advertising keywords subject to prior authorisation from the owner of the brand name in question," said the Parliament resolution.
Copyright © 2011, OUT-LAW.com
OUT-LAW.COM is part of international law firm Pinsent Masons.
COMMENTS
Who's surprised?
There's a lot more money to be made if these keywords are accepted, so if the possibility exists, it is a no brainer really.
You are missing a relevant fact
May be I missed it in the article, but the reason Microsoft will not be pursing keyword-based trademark infringements in the US is that a Texas court last year ruled there is no offence being committed. So all they are doing is complying with the law in the jurisdiction where it applies and not where it doesn't. Just standard practice, right?
Australia
As I have previously noted, the situation in AUS was that Keyword use was a breach of Trade Mark. This following a cosy little undefended breach-of-trademark case between Ford and General Motors in the early days of the internet.
I would be interested to know what the situation is now.
A Google search on "Holden" brings up only "Holden" adds, a search on "Ford" brings up only "Ford" adds, and the only way to get a "Great Wall" or "Proton" result is to search for those specific terms. Handy for the well-known car companies: tough for anyone trying to enter the market.
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