The issue of “keyword advertising” – a concept unique to the internet – continues to generate court decisions. And in the most recent decision, Goliath has triumphed over David.
Keyword advertising is a simple concept. If someone wants to draw attention to their product or service, they purchase key words from search engines. Any time someone searches for that term, an ad for that person’s product or service shows up on the results page.
So, for example, a personal injury lawyer may purchase the word “accident.” And anytime someone enters that term in a search, an ad for that lawyer will show up. The concept gets a little tricky though, where the key word is someone else’s trademark. Can someone buy the trademark of a competitor that triggers the competitor’s ads every time someone searches for the trademark? The answer generally appears to be yes, as a recent case involving Amazon demonstrates.
Amazon purchased certain keywords for use in sponsored advertising, including keyword “Baiden” through Google’s AdWords program and on similar programs offered by “Bing.com” and “Yahoo.com. Ayse Sen, the owner of the Baiden trademark alleged in her complaint that the campaigns diverted online traffic to a landing page on Amazon’s website displaying competitor products which reduced her online traffic and decreased sales for her products.
The key issue for the court in a trademark infringement suit is whether the alleged infringement created a “likelihood of confusion.” Would the consumer mistakenly purchase the competitor’s product because the advertising led the consumer astray?
In assessing Sen’s infringement claim, and the likelihood of confusion, the court considered several factors. One was whether the product was such that consumers would be careful about what they were purchasing. This factor is a function of price and the function of the product. I am probably more concerned with the brand of my refrigerator than I am with the brand of the bottled water I put in it. Here, the Baiden products were a line of skin care items. While not tremendously expensive, the court noted that “a reasonably prudent consumer is likely to exercise a high degree of care when purchasing facial and body products. Specifically, to avoid a potential outbreak or allergic reaction. Therefore, a consumer is more likely to exercise a higher degree of care, as opposed to purchasing other types of products.” For this reason, the court felt there was not a high risk of confusion.
In addition, the court noted that there was little evidence of any actual confusion. Sen produced one instance where a consumer returned a competitor’s product to her. But the court noted that this seemed to be an isolated instance, and in any event, it couldn’t be definitively attributed to the Amazon advertising.
Finally, the court noted that Amazon labeled its keyword advertisements such that it was very clear that they were Amazon ads, and not the Baiden home page. This undermined Sen’s confusion argument significantly. The court ultimately found that Sen simply couldn’t prove her case and granted Amazon summary judgment.
People are likely of differing minds when it comes to keyword advertising. Some may see it as shady, and others may see it as an opportunity to ensure consumers have plenty of choices. But to prevail on a trademark claim, a plaintiff had better come armed with evidence that the advertising is likely to confuse.
Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.
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