As you may know, Google recently loosened its policy in the USA related to the use of trademarks in ad copy text, which went into effect on June 15, 2009. The big question is: has this change resulted in an increase in trademark use? The answer is yes.
The Search Monitor tracks and monitors trademark sponsorship and use in ad copy across all of the major search engines for brand holders. We recently conducted a study to determine the impact of these recent trademark policy changes. The results indicate that there has been an increase in trademark use across all of the major search engines. . . .
[T]he study above shows a big jump in keyword sponsorship of branded terms. This result is interesting because Google did not change its policy with regard to keyword sponsorship. Google has allowed keyword sponsorship for quite some time now. However, the recent policy change which specifically impacted use in ad copy, seems to have encouraged a surge in advertisers sponsoring brands as keywords. Yahoo and Microsoft Advertising did not issue a change, and yet seem to be impacted as well.
Weiman goes on to consider some of the issues courts look at when determining the legality of an advertiser’s use of a competitor’s trademark, noting that Google’s change in policy does not mean that use is necessarily legal.
What has changed, of course, is that Google quite rationally has determined it has little to lose by accepting the revenue that all such advertising will generate. U.S. courts have been reluctant to hold online providers of the facilities for third-party infringement accountable for that infringement the same way they historically have charged bricks-and-mortar faciliators with actionable “willful blindness,” on the grounds that it’s different if you make so much money by your contributory infringement that it might slow you down to take serious measures to stop it.
That’s not to say that I think key word advertising is necessarily trademark infringement, but as I’ve written before, that’s not to say that I think it can’t be. But if the eBays and Googles of the world are held to different standards from those the mom-and-pop flea markets are held to, the former would be foolish not to cash in on that, right? Of course right.