Google AdWords – Infringing or Liberalizing Trade?
A Comparative Analysis of Treatment of Google AdWords under U.S. and EU Trademark Law
Written by Anne-Kathrin Adler
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Bachelor Thesis: GOOGLE ADWORDS "The act of typing keywords in Internet search engines has become part of our culture, and the results are immediately known to people. To be fair, the actual inner workings of how to provide these results are mostly unknown to the public. Simple. It is assumed that if you ask, it will be given to you; if you seek, you will find it. 5" The statement issued by the Attorney General Poiares Maduro captures the essence of Internet search and also suggests how Internet search functions are linked to Google AdWords Thoughts. 2.1. How does GOOGLE ADWORDS work? In short, Google AdWords is designed to manipulate search results, artificially placing the advertiser’s website above other possible search results. In the process, the advertiser purchases keywords that he wants to associate with his webpage and AdWords ads6. There are multiple ad formats to choose from; therefore, the most common form is still a simple text ad, which contains a hyperlink headline to the advertiser’s website, two lines of descriptive text, and the URL of the advertiser’s website7. At the same time, the advertisement is internally linked to the purchased keywords8. Therefore, if an Internet user conducts any type of search, the ad will automatically be displayed along with other search results9. AdWords account holders can adjust their ads to certain parts or pages within the Google "content network", and can use computers and mobile devices to target customers. In addition, the accuracy of matching search results with their keywords can be set by the account holder10. They can also stipulate that specific ads are prevented from being displayed for selected keywords. Setting up an AdWords account is as simple as registering for accounting information online. Although account holders must pay a small non-refundable fee when activating and creating an account, creating ads and choosing keywords is free. After setting up the ads to run, Google charges the account holder based on one of two options: CPM, which is a fee each time an internet user views the ad or a cost-per-click every time an internet user clicks the ad Will trigger expenses. The account holder can then determine the maximum billing rate, which is a tool Google uses to determine the "rank" of the ad. Therefore, where the advertisement will appear on the search results page depends on the ranking of the advertisement. In other words, the account holder who "bids" on the keyword thinks that they are competing with all other account holders who aim to use the keyword. 2.2. Where is the interface between GOOGLE AdWords and trademark law? The controversy surrounding the evolution of Google AdWords stems from its practice of allowing account holders to select trademarked keywords, even if he does not have the rights to the relevant trademarked terms. When selecting, Google will not check the trademark status of keywords. On the contrary, the infringement claim will be investigated only after receiving the complaint13. In addition, Google currently adopts different policies for selecting trademarks as keywords, all of which depend on the region in which the trademark is registered. As far as the United States is concerned, Google only investigates the alleged use of trademarks in the text of advertisements; the use of keywords is not subject to investigation14. Considering that ads are shown to Internet users in the United States, Google may force ad owners to remove infringing terms, but will not prohibit the use of the mark as Google AdWords keywords15. Google applies the same policy to the United Kingdom and Ireland. However, for other countries in the European Union, Google will investigate the alleged use of trademarks in keywords, ad text, or keywords and ad text. Google further requested that the trademarked terms be removed from the keyword list of the offending AdWords account holder. Regardless of the country/region, Google’s trademark infringement queries are limited to keywords related to ads or AdWords ads, and will not affect the internal use of trademark terms in the Google search process. When trademark holders are no longer willing to display their trademark in search results, Google will require the trademark holder to apply to the owners of the pages that appear in the search results to request the removal of the trademark from these sites. According to Google’s view, as an intermediary service provider, it should not be required to act as the first-instance enforcer of trademarks16. Therefore, advertisers (not Google) are primarily responsible for ensuring that their use of AdWords is fully compatible with trademark rights. Google’s current policy prompts trademark holders who are suspected of trademark infringement to directly file claims with advertisers-which constitutes Google’s own "limited investigation of reasonable complaints about the use of trademarks in advertisements", only as a "courtesy to trademark owners"17 In addition to its stated position, Google is subject to lawsuits in the United States and the European Union. Google is alleged to be primarily responsible for the trademark infringement policy in AdWords, and Google deliberately ignores this responsibility18. So far, such lawsuits have been resisted by Google. Read Less