Keywords are the words you type into a search bar to try to find websites that will contain the information you are seeking. A search engine will search for keywords contained in websites and will produce results based on the keywords you entered. Google and other search engines are in the (rather profitable) business of selling keywords. By purchasing a keyword, the buyer’s website will be one of the “sponsored” results that appears on the search results page alongside the organic results. Sometimes website owners purchase keywords that are descriptive of their product, such as “hotel” or “restaurant”. Other times website owners purchase keywords that are actually the trademarks of competitors. For example, a seller of handbags might purchase “Coach bags”as a keyword, even though they do not sell Coach bags, so that any time someone types in “Coach” and “bags” looking for Coach handbags, the handbag seller’s website pops up as a sponsored link alongside Coach’s website.
This practice has presented a challenge for courts in trademark infringement cases. If those trademarks were actually used on the third party’s website, depending on how they were used, the question of whether the use constituted infringement would usually be fairly clear cut. But where the trademarks are not being used on the website, where they are only being used as keywords to trigger a sponsored advertisement of the website, the answer is less clear.
The two issues courts have a addressed in these cases are (1) whether using (or selling) a third party’s trademark in order to trigger a sponsored ad constitutes a use in commerce, and (2) whether such use would likely cause confusion among consumers. Although only a few courts have issued opinions on this issue (with several cases pending), the trend in the United States has been to hold in favor of both the search engine companies and the buyers of the keywords in finding that such use does not constitute trademark infringement as long as the trademarks are not being used in or with the sponsored ads (or on the websites themselves).
The European Union’s highest court recently chimed in on the issue in a case involving Google being sued by a trademark owner for selling keywords that included the plaintiff’s trademarks. Although the court has yet to issue its official decision, an adviser to the court released a statement last week saying that such practice does not constitute trademark infringement.
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