Google Lets Advertisers Use Brand Names in Trademark Overhaul

The policy change isn’t a copy-and-paste of Google’s keyword policy. There are only two conditions under which Google will allow trademarks directly in ad text: Those in which the mark is used in a “descriptive or generic way,” not mentioning the trademark owner or goods and services corresponding to the mark, and those in which the mark is used “in a nominative manner.” That gives the green light to advertisers who sell a trademarked good or service, so long as it’s clear from the site’s landing page that a user can buy the good or service. Advertisers who sell “components, replacement parts or compatible products” for the trademarked good or service can also use trademarks, as can sites that provide “non-competitive and informative details” about the good or service. But such sites can’t sell items that compete with the trademark owner’s product.

Google’s prior policy was akin to supermarket advertisements for product categories such as “discount cola,” rather than for specific products, Dan Friedman said on Google’s Inside AdWords blog late Thursday. “For many categories of advertisers, this is the problem they have faced on Google for some time,” he said. Sites that sell several brands of athletic shoes, for example, now can create specific Google ads for each brand, “reducing the number of overly generic ads” run by Google. The policy change will only affect U.S. ads, and ads incorporating trademarks won’t go live on Google until June 15, Friedman said.

The change was announced on the eve of the International Trademark Association’s annual conference in Seattle, which was to start Saturday and run through Wednesday. Google’s move wasn’t expected to be announced until this week, a source told us. A receptionist at the association told us Friday that executives of the New York-based group were en route to the conference and couldn’t comment on the policy change. A Google spokeswoman told us the company changes AdWords policy on a “pretty frequent basis” as it evaluates user and customer experiences and “legal requirements.” She wasn’t sure whether falling revenue from advertisers unhappy with generic ads was a factor, as has been widely speculated. “A number” of advertisers have already thanked Google for the change, she said. Senior Trademark Counsel Terri Chen told Reuters that Google was more confident now in its ability to monitor violations of the new policy. Matthew Schruers, counsel to the Computer and Communications Industry Association, said the change “aligns Google’s policy more closely with current industry standards on sponsored search text.”

“There’s good reason for them to think they have legal support,” Eric Goldman, director of the High Tech Law Institute at Santa Clara University, told us. There’s no way for a reseller to usefully describe a product without a trademark, and leaving out trademarks in ad text, after a consumer has specifically searched for that mark through Google, may be confusing to consumers, he said. The ad-text change doesn’t appear to be related to Google’s recent global expansion of the keyword-trademark policy, previously limited to the U.S., U.K. and Canada, though “both of them look like cash grabs,” Goldman said. But it’s likely that neither advertisers nor consumers were happy with Google’s current restrictions, he said.

Google’s move won’t earn it any more friends, though, Goldman said. “You get enough enemies and they start coalescing around policy changes in D.C.,” including trademark owners who may “jump on the bandwagon of [using] other ways to harass Google.” Legislative efforts targeting Google’s selling of trademarks thus far have been limited to state legislatures, notably Utah, and there’s not an obvious federal lawmaker to lead the charge, he said.

Litigation against Google for its keyword trademark policy was ramping up Thursday when Google announced the change. Following an infringement suit seeking class-action status for Texas trademark owners in U.S. District Court, Marshall, Texas (WID May 14 p6), a similar suit was filed Thursday in the same court. California-based John Beck Amazing Profits, which sells educational materials and runs seminars on real-estate strategy, said Google and AOL, which uses Google’s search engine and AdWords on its own site, were guilty of infringement for selling its trademarks to competitors. The Beck suit seeks a nationwide class, unlike the earlier Firepond suit, which seeks a class of Texas plaintiffs. It also targets far fewer companies using Google’s advertising system. Both suits were filed by the same group of lawyers, however. Given Google’s new trademark policy, “it doesn’t seem like Google is looking for an easy way out,” Goldman said.