Overview[edit | edit source]
Keyword advertising refers to any advertising that is linked to specific words or phrases. Internet search engines such as Google, Yahoo!, or Microsoft’s Bing generate significant revenue from the sale of keywords to trigger online advertisements that appear on search engine results pages. These advertisements typically relate to search terms entered by Internet users and appear as “banner” advertisements on the top of the Web page or “sponsored links” that are displayed on the right column of a Web page or before relevant search results; such Web ads, if clicked on, direct the user to the website of the advertiser.
Trademark issues[edit | edit source]
While the sale of a descriptive word such as “computer” by an Internet search engine does not raise trademark concerns, the sale of a competitor’s brand name or trademark as a keyword may be actionable as a violation of federal trademark law. For example, a search engine could choose to sell the General Motors trademark “Corvette” to Ford, such that an advertisement for Ford cars would appear as a “sponsored link” on the computer screen of a person who searched for “Corvette.” In response, General Motors might file a trademark infringement lawsuit against either the search engine (as the seller of its trademark) or Ford (as the purchaser), complaining that such unauthorized use of its trademark may create a likelihood of confusion by consumers as to whether Ford’s advertisement is in some manner sponsored by, endorsed by, approved by, or affiliated with General Motors. The prospects of General Motors winning such a lawsuit are unclear, however, due to a lack of case law that has specifically addressed the “likelihood of confusion” element of a trademark infringement claim.
While trademark owners may be unhappy that their competitors’ advertisements appear in an Internet search results for their trademarked names, they also may be upset over having to pay more to secure their own trademarks as keywords in an auction system. However, some observers claim that an Internet search engine’s practice of selling trademarks as keywords benefits consumers, as it helps them to discover competing products that may be less expensive or of higher quality. Also, sponsored advertisements allow consumers to comparison shop and may inform consumers about relevant news and criticism about the searched-for trademark name.
References[edit | edit source]
- See Miguel Helft, Order of Ads On Google Leads to Suit, N.Y. Times, May 15, 2009, at B1 (“[A]nalysts say selling ads linked to trademarks is a big business for Google, which gets the bulk of its revenue from search advertising that it sells through an auction system.”); see also Rescuecom Corp. v. Google, Inc., 562 F.3d 123, 126 (2d Cir. 2009)(full-text) (“Rescuecom alleges that Google makes 97% of its revenue from selling advertisements through its AdWords program. Google therefore has an economic incentive to increase the number of advertisements and links that appear for every term entered into its search engine.”).
- Corynne McSherry & Jason Schultz, Fight Over Google’ s “Sponsored Links” Threatens Internet Free Speech, Electronic Frontier Foundation, Feb. 22, 2007.