We defended our position in a series of court cases that eventually made their way up to the European Court of Justice, which earlier this year largely upheld our position. The ECJ ruled that Google has not infringed trade mark law by allowing advertisers to bid for keywords corresponding to third party trade marks. Additionally, the court ruled that advertisers can legitimately use a third party trademark as a keyword to trigger their ads
Today, we are announcing an important change to our advertising trademark policy. A company advertising on Google in Europe will now be able to select trademarked terms as keywords. If, for example, a user types in a trademark of a television manufacturer, he could now find relevant and helpful advertisements from resellers, review sites and second hand dealers as well as ads from other manufacturers.
This new policy goes into effect on September 14. It brings our policy in Europe into line with our policies in most countries across the world. Advertisers already have been able to use third party trademarked terms in the U.S. and Canada since 2004, in the UK and Ireland since 2008 and many other countries since May, 2009.
The most interesting bit for Pangloss is that what accompanies this is a new type of notice and takedown procedure.
In the affected European countries after September 14, 2010, trademark owners or their authorized agents will be able to complain about the selection of their trademark by a third party if they feel that it leads to a specific ad text which confuses users about the origin of the advertised goods and services. Google will then conduct a limited investigation and if we find that the ad text does confuse users as to the origin of the advertised goods and services, we will remove the ad. However, we will not prevent use of trademarks as keywords in the affected regions.
This is an interesting way of implementing the caveats in the ECJ decision. Google have generally sought to automate all their processes as far as possible, whereeas this will create a lot of manual work in processing what will no doubt be a storm of cease and desist notices - compare the Content ID approach on YouTube where take down exists and is faithfully followed, but there is also a push towards persuading IPholders to submit their own works for pre emptive filtering. However in this case they clearly think the work involved in implementing this new scheme will make more money for them in advertising revenue, than it will lose in costs of manual take down. And take down should fend off most future litigation, though not, I suspect, all. For businesses , a harmonised policy through all EU is always a boon.
It would be interesting to see some empirical data emerging on how this affects the choice of keywords, click-through and text of AdWords ads in future, and how this does or not benefit the public interest in access to information in advertising. Google's usual approach to open data should be helpful here. (Will takedown notices under this scheme go to Chilling Effects website, as linking-to-content take down requests do? I hope so.)