To Catch a Predator: The Online Abuse of Trademarks
One little known, yet potentially salient fact about Google AdWords and bidding on trademarked terms, is that it’s not always the advertiser that chooses to bid on the trademark. We have seen cases where, depending on the match type chosen (and, perhaps, depending on how much money Google’s Algorithm predicts it can make for Google), Google will display our client’s ads on competitor marks. Though these key phrases were not things we wanted to be seen on, as we knew they had poor conversion metrics, Google would show our client’s ad on their competitor’s names. To stop this behavior we had to specifically add negative keywords.
The interesting question raised by this is that it removes (in my mind, at least) the validity of an ISP-like claim for Google on trademark bidding (e.g. it wasn’t us, it was our advertisers, we just host the stuff). There are cases where Google makes the choice, not the advertiser, to show these potentially trademark-infringing advertisements.
I’m not sure if this is public knowledge, and I haven’t seen this mentioned in any of the cases to-date. Thus far, Google has won most of these legal actions in the U.S. (with an adverse ruling in the New Jersey area), and has lost cases on this in France, but none of the rulings has yet risen to the appellate level. The newest plaintiff, American Airlines has pockets deep enough to pursue this all the way up to the Supremes, if they so choose, as does Google.
