Is the use of a competitor’s name in keyword advertising considered trade-mark infringement? 

The short answer is that in Canada, we still don’t know. The closest decision we have is from a recent lawsuit which deals with competing career colleges in Vancouver. Vancouver Career College (VCC) had an aggressive policy of buying up the keywords of competitors. In Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc., 2011 BCCA 69, the BC Court of Appeal has upheld a lower court decision  that the keyword advertising program of VCC was not misleading advertising.  Unfortunately, this is not a trade-mark decision, so it provides little guidance on the topic for business, since the lawsuit involved interpretation of a subsection of the BC Private Career Training Institutions Act.  Here, in deciding that consumers were not likely to be deceived, the court noted that the nature of the “product” will be relevant. Consumers spending several thousand dollars on career training courses are not likely to make snap decisions based on sponsored links; they are more likely to weigh their options carefully after going through a lengthy review and admissions application procedure. 

We still have to wait for a decision based in Canadian trade-mark law to provide useful business guidance in this area.

Related Reading:

• Google Adwords Update (from the IP Group at Field Law) 
• Google AdWords: Can’t Beat ‘Em?

US Update:

• Google Suffers Surprising Preliminary Loss in Keyword Advertising Case–Jurin v. Google  

Calgary – 07:00 MST