9 Secrets To Make Your Keyword Advertising Legal | Innova Adlaw ...

Background
Pick up any magazine or journal dedicated to the advertising industry and you are sure to read about a new lawsuit regarding keyword advertising.? Google has so far survived an onslaught of claims from trademark owners.? However, companies using another?s trademarks are highly susceptible to false advertising claim lawsuits from trademark holders.? This does not mean advertiser?s can never use another company?s? trademarks for keyword advertising, it just means advertisers must understand the risks of doing so.

Discussion
There are five elements of a false advertising claim, but these can be summarized by asking a simple question:? Did the Defendant?s use of the Plaintiff?s trademark result in a likelihood of consumer confusion which harmed the Plaintiff (for instance, by resulting in lost sales)?? This is a subjective test applied by the courts, and even the court?s determination of likelihood of consumer confusion is based on numerous factors, not just one.

In any keyword advertising campaign, if you are going to use another company?s s trademarks, be aware of these nine issues:

1. Advertisers must understand merely using trademarks when purchasing sponsored links, exposes the buyer to trademark violation, even if the word itself is not used in the ad.

2. If an advertiser uses keywords or phrases that would subject them to FTC regulation, it is likely the FTC or a competitor will bring a false advertising claim against them.?

3. If the ad would normally pass FTC scrutiny if it were in another media, then use of the trademarked keyword will have a greater chance of withstanding challenge by the trademark holder.

4. Importantly, advertisers must make sure the use of the keyword does not imply sponsorship, affiliation or endorsement of its own products.

5. Users of another?s trademark must limit their use to ?fair use? (a topic of lengthy articles and too complex to discuss in this post).

6. A company cannot prove its use of another?s trademark, merely because the trademark owner does not police its use in keyword advertising.

7. Where the use of another?s trademark merely results in company being listed in ?sponsored links? section, confusion is less likely because consumers generally know this advertising was paid for.? This should be the same where keywords are purchased and result in a pop-up ad, video, or banner ad that clearly indicate it is an ad.

8. Even if sponsored search results themselves do not cause a likelihood of confusion, courts will look at sponsored search results in the context of the total advertising campaign of a company, to decide whether a valid false advertising claim exists.?

9. If the sponsored ad needs more disclosures to avoid confusion, then disclose more to clarify.

Why You Should Care
Trademark owners are wasting their time if they sue Google for selling trademark words.? Trademark owners will have more success if they bring their claims against competitors for use of trademark materials.? While no advertisers can stop another from suing them (it?s the American way, after all), advertisers should take into account these nine tips when developing their keyword campaign.? Implementing them may establish a basic defense to claims from trademark owners.? Another option, though, is using social media to ?shame? competitors from using its trademark keywords.? This has actually been a successful litigation strategy used by many defendants where a plaintiff has brought a baseless lawsuit.

Source: http://www.innovaadlaw.com/9-secrets-to-make-your-keyword-advertising-legal/?utm_source=rss&utm_medium=rss&utm_campaign=9-secrets-to-make-your-keyword-advertising-legal

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