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Use of trademarks as keywords not infringement

Use of trademarks as keywords not infringement, Australia court holds – Lexology

Australia, Canada

 

The purchase of a competitor’s trade-mark as an online advertising keyword is not an infringement, according to a recent Federal Court of Australia decision., the decision relied on evidence that the keywords were not visible to consumers and were selected and provided to Google by the defendant, rather than being used to identify a trade source. However, use of the trademark in a “sponsored link” in relation to the same services as those of the registered mark was held to be an infringement in certain circumstances.

Search engines, such as Google, facilitate web searches by allowing users to enter various terms into a search field. In executing this search, Google displays “organic” and “sponsored” search results. Search engine optimization (SEO) improves the priority of a company’s listing in the organic search results. Businesses can optimize their exposure by using code, content and website design that relate to key words that are commonly searched. Sponsored links, on the other hand, are advertisements that may be created, changed and monitored by advertisers. Sponsored links are triggered by keywords privately supplied by the advertiser to Google.

This is part of a much longer article by McCarthy Tetrault, which can be found at Lexology.com.

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