Watch your words

Article  \  3 Jul 2013

The Google AdWords policy has recently changed. Corinne Blumsky outlines the changes and suggests ways to protect your trade mark from being used by a competitor.

What is Google AdWords?

Any retailer doing business online needs to know about Google Adwords.

Google Adwords is the system that Google developed to help a business market its products or services in the Google search engine and its affiliated sites.

Google Adwords is a useful tool to help get your business's name to the top of Google's search engine rankings. It allows retailers to purchase keywords that consumers use to find their products online.

When a Google search is made and that search includes a purchased keyword, the purchaser's advertisement will appear as a 'sponsored link', usually to the right or above the main search results.

A keyword can be anything written. It can be something generic, like the word "clothing", or it can be a business's trade mark.

The system is a 'pay per click' system, which means you can dictate where your advertisement appears through bidding for a series of keywords. You only pay the amount you have bid for if someone clicks on your advertisement as a result of a web search.

What's changed with Google AdWords?

Google has recently changed its AdWords policy in New Zealand and Australia regarding the use of trade marks as keywords.

Google's previous policy meant that if a competitor was using your trade mark as a keyword, you could complain to Google using its complaints process and Google would stop that use.

According to the new policy introduced from 23 April 2013, Google will no longer act to restrict someone else using your trade mark as a keyword. 

What does the change mean?

What the change in Google's policy means is that it will become more common for businesses to purchase keywords based on their competitors' trade marks.

Importantly though, Google hasn't changed its policy on trade marks appearing in the advertising text. If your trade mark appears in the text of a competitor's advertisement then Google still has a complaints process which you can use to object to your trade mark being used by a competitor.

Other legal action may also be possible like passing off or a breach of the Fair Trading Act.

What should I do to protect my trade mark?

There are some basic steps you can take to protect your trade mark. Here are a few suggestions.

  1. Register your trade mark if you haven't already. A trade mark registration provides the best basis for protecting your trade mark for the goods and services that you provide. Google will only investigate a trade mark complaint if you can establish you have valid trade mark rights. This is much easier with a trade mark registration.
  2. Review your trade mark registrations. Make sure your registration covers the trade mark you are actually using for the goods and services you provide. It is not unusual for a trade mark to be tweaked and changed over time. Nor is it unusual for a retailer's product offerings to change over time. If the trade mark you have registered differs from what you have a complaint about it will be more difficult for Google to validate your rights and act on your complaint.
  3. Conduct regular searches of your trade mark on Google. Set up a system to ensure that those searches are made.  Google doesn't monitor the misuse of your trade mark - this is up to you. If there is use you are concerned about, seek legal advice on your options.
  4. Be careful if you intend to use someone else's trade mark in any context. Just because Google's AdWords policy has changed doesn't make you safe from trade mark infringement. If you are not sure, ask someone who is.

The last word

The same care should be taken with choosing and using Google Adwords as with any other form of advertising. Be alert to others purchasing and using your trade mark as an Adword. Also be careful about the words you choose!

An edited version of this article was published in NZRetail magazine, issue 719.