This article explains how to prevent your competitors from using your trademark to their own advantage, in some contexts. First and foremost, you should know that using a trademark in Adwords is not considered an infringement of trademark rights.
How can we stop someone else from using our trademarks in Adwords? In order to protect clients, Google makes use of the concept of a ”reasonably well informed and attentive customer”. If this customer can be confused by the ad, then a claim against it will be accepted.
Before we look in more detail at how to protect our trademarks, let’s look at what Google Adwords is and the two levels at which it works: keywords and adverts.
What is Google Adwords?
Google Adwords is a Google tool through which shops (virtual or physical) can advertise their products and services. People that search using Google will see the adverts that companies have purchased (under certain conditions which we will explore later) and can decide what to buy.
Companies invest a lot of money in advertising, to generate more visits to their website, purchases and increase recognition of their trademark. This can incentivise other companies to use their competitor’s name or trademark in adverts for their own products or services, hereby taking advantage of their competitor’s good reputation.
How do Adwords and trademark complaints work?
Adwords works by connecting keywords chosen by companies with the words a potential client types into their search engine. When a client clicks on one of the choices that comes up, they are directed to the page chosen by the company. When a client writes a keyword, for example “mannik shoes”, Google checks all of the keywords it has on its records and shows the results that best align with what the client has searched for.
This search is reflected in the form of an advert, produced by the company, explaining what the client will find if they click on the link. Now, let’s look at what trademark infringements complaints Google will consider with Adwords.
Google allows us to file complaints against and will investigate cases where a company uses its competitor's trademark in its own adverts. For example, if iGERENT suddenly decided to sell shoes, and we spotted that Mannik gets a lot of visitors to its website we could create an advert targeted at those people who are interested in Mannik's products.
Visitors would visit our website, whereas in fact they would think they were visiting Mannik’s. Google tries to avoid these situations which create some confusion about the trademark.
Following the previous example, let's imagine that a potential client searches for “mannik shoes” in Google. Two companies would come up as part of the results.
- Mannik shoes: what the client was probably looking for.
- iGERENT shoes: their competitors, who offer similar products. They have decided to use the fact that the former’s brand is well known to better position their own advert.
This is completely in line with Google's trademark policies. As long as the client doesn't see the trademark itself in the advert (and the advert doesn't confuse them when they make their choice) companies can select other companies’ names as their own keywords. But never in the adverts themselves.
This being the case, the only option companies have is to bid for their own trademark name within their keywords so that, whilst their competitors’ adverts will come up, they will too. Furthermore, Google's rules mean that advertising this way is less profitable for competitors, as they won't be able to use the other company’s trademark on their website or within the body of the advert, so Google will always categorise them as less “relevant”.
How can I prevent other companies from using my brand in AdWords adverts?
Now we know that we can prevent our competitors from using our trademarks, but only in adverts. How can I lodge a complaint with Google?
Before putting a claim in, you should ensure that your trademark is registered in the country where the advert is showing. If you've registered your trademark in Spain, you can lodge a complaint for adverts that appear in Spain, but not in Argentina.
If you have yet to register your trademark in the countries where your competitors are operating contact us and we'd be happy to help you get it registered. If your trademark is already registered we can fill in the complaints form for you, or you can do it yourself.
Once this is done, you just need to wait for a response from Google, which can take a while. Remember that they have a low tolerance policy for incorrect use of this tool. Ensure that your competitors are using your trademark and that it's registered.
If you have any questions about how the process works, get in touch and we'd be happy to advise you.
Does my trademark have to be registered?
Google will accept claims for rights of exclusive use for well-known brands which have not yet been registered. This reflects Google's own way of working, a US company where the mere use of a trademark brings with it certain “user rights”.
This doesn't mean that registering a trademark is unnecessary. As their AdWords policy outlines, intellectual property rights are of a territorial nature, and so claims are only investigated where an “active” right exists for a trademark. User rights only exist in Anglo-Saxon countries whose legal systems derive from common law (UK, US, Australia, etc).
For the rest of the world, we can assume that an “active’ right, as they are known, only exists if there is a record of the trademark.
As previously mentioned, “active” rights are acquired in a specific territory. Even if it isn't registered, a trademark which is being used in the US will be subject to some protection. However, a trademark registered in Spain must have a registration number for a claim to be successful.
If a competitor is using your trademark, all is not lost. We recommend that you contact us. The above article provides some general information but does not constitute legal advice, and every case should be considered in its own right.