Key Words Do Not Breach Trade Mark

The Advocate General has recently given his opinion that the use of a competitor’s trade mark as a ‘key word’, in order to trigger the appearance of one’s own advertisement when an Internet search is carried out, is not an infringement of the owner’s trade mark.

Key words are used to guide Internet searches to websites, so the use of a competitor’s name to bring searchers for their products to another website is relatively commonplace.

Following a legal action against Google, the Advocate General concluded that Google’s use of trade marks as key words to trigger adverts was permissible. However, he was at pains to point out that use of visible trade marks within the adverts (key words are normally placed so that they are invisible to visitors to the site but visible to web search engines) would be an infringement.

The opinion will be welcome to Google and many advertisers, as key words are the basis under which Google’s ‘AdWords’ service operates. This service allows advertisers to place advertisements on results pages of web searches, driven by the words used for the search.

However, the Advocate General’s opinion (which is not binding) has been widely criticised and it is possible that it will not be followed when the case is decided by the European Court.

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