AdWords trademark policy changes bring fairness to advertising

After recent news from Yahoo Sponsored Search and Microsoft adCenter that both programs are shifting to draconian trademark protection policies, it is a quite refreshing to hear Google breathe some reason back into search advertising.

For years trademark owners have objected to the use of their marks in competitive advertisments, some going so far as to sue (unsuccessfully) search engines for showing competitors in natural results. The threat of continued legal action, particularly where ads are concerned, caused the search engines to prohibit advertisers from using trademarked terms in their ads. More recently, Yahoo and adCenter have prohibited companies from showing ads when people search on trademarked terms.

Traditional advertising has long been held to a much weaker and more reasonable standard than that being promulgated until recently by search engines. Competitors could make “fair use” of trademarks if they did not mislead the consumer and clearly differentiated themselves from the trademark owner. They could, for instance, compare their products to others’ trademarked products. For instance, the Pepsi Challenge named Coke, and auto companies frequently mention their competitors by name.

Google announced today trademark policy changes that will allow, under certain circumstances, advertisers to use trademarks that they don’t own. This is a significant step forward, one that we hope starts to loosen the restrictions imposed by Yahoo and Microsoft advertising services.

While we are happy to see Google moving in the right direction, we are not yet satisfied with the new policy. Google indicates that trademark disputes are up to the conflicting parties. They then provide instances where they will intervene on behalf of trademark owners. This is the part that concerns us: not that they will, but that they define the conditions of intervention based on a short list of what is allowable, not what is prohibited. This effectively prohibits trademark use in all but a few, specific circumstances which notably do not explicitly include competitive comparisons.

We applaud Google for taking a step in the right direction, but our applause is still somewhat muted until we see policies for trademarks match those of other advertising media.

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4 Responses to “AdWords trademark policy changes bring fairness to advertising”

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