Can you use a competitor’s trademark in Google AdWords?
You type the name of your trademark into Google. As expected, your website displays as a result. But a link to your competitor’s website is displayed above it as a ‘sponsored’ link. They have used your trademark in Google Adwords as a keyword! Is this legal? Recently, the Federal Court held that use of Adwords keywords usually does not constitute trademark infringement. In some circumstances, the use of someone else’s trademark in the text of the Google AdWords advertisement can even be legal. How is this so?
The case: Veda Advantage Limited v Malouf Group Enterprises
The plaintiff, VEDA Advantage, is the largest provider of credit ratings in Australia. VEDA Advantage owns and markets a range of branded credit rating services. At the time of the litigation, they were the registered proprietor of trademarks for the words ‘VEDA’, ‘VEDA ADVANTAGE’, ‘VEDA CHECK’ AND ‘VEDASCORE.’ VEDA Advantage uses a ‘VedaScore’ to summarise the information in a person’s credit file. The defendant, Malouf Group, provides ‘credit repair’ services to clients. Their business involves challenging companies such as VEDA Advantage to justify credit rating scores and rectify errors in credit reports.
Malouf Group used the Google Adwords service to display a sponsored link on Google search pages when users searched for certain keywords. When certain phrases which include a chosen keyword are entered into Google by a user, the advertiser’s ‘sponsored links’ are displayed at the top of the search results as ‘sponsored’ links. These keywords are invisible to users. Malouf Group chose approximately 86 keywords. Some of the keywords used by Malouf Group included VEDA Advantage’s trademarks. The court held that this did not constitute trademark infringement, as the words were not used ‘as a trademark’ in this context. Importantly, the keywords were not visible to users, and were not used to indicate a connection to VEDA Advantage. The court stated that: