The Adoption of a Competitor's Trademarks as Search Terms In Google AdWords May Not Be Such a Great Idea

Google AdWords and similar services display highly prioritized links as search results when someone enters a predetermined search term into a search engine.  It wasn’t long after such services became available that companies realized that by using trademarks and product names of a competitor as search terms with such services, a company could greatly increase the likelihood that a party performing an online search for the competitor’s products or services could be diverted to the website for the potential economic benefit of one other than the trademark owner.   The practice of using a competitor’s trademarks and product names in this manner comes with some risk.

Typically, trademark infringement results when the use of a mark by one company in conjunction with its own products or services is reasonably likely to result in confusion in the marketplace with the use of a similar mark by another having superior trademark rights.  The question of whether there is a likelihood of confusion has typically been viewed as of the time of the acquisition of a product or service.  However, under a legal doctrine known as “initial interest confusion” courts have found parties liable for trademark infringement in circumstances where a potential consumer was initially confused as to the source of origin of the product or service, but where no confusion existed as of the time of the ultimate acquisition of the product or service.

In view of the adoption of the initial interest confusion doctrine by some courts, there is a risk that the use of the trademarks or product names of a competitor as search terms to increase the potential economic benefit of another could result in a cause of action for trademark infringement. For this reason, such practices are generally not recommended.

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