ONLINE ADVERTISING


In addition, advertisers can utilise paid listings in which their ads appear at the top or side of search results for specific keywords. Since the introduction in 1996 of keyword advertising by Yahoo!, all the major search engines have developed their own keyword advertising services, with Google’s AdWords now, arguably, the best known such service.


Keyword advertising has brought its own challenges for trademark owners, which, not unexpectedly, are quite significant in most jurisdictions, given the magnitude of the online


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advertising business. Te most fundamental problem faced by brand owners in the pay-per- click advertising world is the use of trademarks as keywords by third parties, and courts around the world have struggled with the question of whether the use of trademarks as keywords constitutes trademark infringement.


In the US, as early as 2003 Google had sought declaratory relief seeking an order that its keyword advertising policy and service did not violate the trademarks of American Blind and Wallpaper Factory. In Google Inc v American


Blind and Wallpaper Factory Inc it was confirmed that the use of trademarks as keywords could result in initial interest confusion, but ultimately where the trademarks in question are descriptive (and thus unenforceable) or common, inherently weak terms, there is little chance of successfully claiming infringement and dilution. Subsequent jurisprudence in the US and in numerous cases in Europe has gone both ways, but nevertheless has not resulted in a single, consistent line of cases that clearly establishes the ability of trademark owners to enforce their rights in the online advertising world.


Trademarks Brands and the Internet Volume 1, Issue 1 41


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