Trademark Infringement and Google AdWords

If you go through Google’s AdWords program and buy a competitor’s trademark as a keyword, are you infringing on that competitor’s trademarks rights?

US courts are still struggling to sort out the law on this issue and while there have been a few Canadian skirmishes over the use of meta-tags, Canadian courts have yet to tackle the adwords issue directly.  The US decision in J.G. Wentworth SSC Ltd v. Settlement Funding LLC d.b.a. Peachtree Settlement Funding No. 06-0597 (E.D. Pa. Jan. 4, 2007) scores a point for advertisers.  In this case the defendant Peachtree bought its competitor’s name “J.G. Wentworth” as an adword and included the same name in its metatags.   J.G. Wentworth sued for trademark infringement.  

Although past cases have gone both ways on this issue, this decision shows that the courts will examine what is ultimately displayed to the consumer.  Here, the use of the competitor’s trademarks was entirely behind the scenes.  J.G. Wentworth’s trademarks were never displayed in search results or ad copy.  Therefore, the court reasoned, consumers never have a chance to confuse the defendant’s services or links for those of the plaintiff.   The case was dismissed. 

Calgary – 14:30 MST

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