Courts signal that Google's keyword policy is lawful

Posted by David Drummond, VP and General Counsel

There have been a few erroneous reports suggesting that a judge ruled against Google in a case involving GEICO. It's actually the reverse of that, so we thought we'd clarify a few things about that decision.

Last December, the judge in the case ruled decisively in our favor on the issue of keywords. In her oral ruling, she stated that GEICO had failed to prove that using "GEICO" as a keyword to trigger ads was likely to confuse consumers. Then, earlier this month, she issued a written ruling explaining the reasoning behind the December ruling.

In her written ruling, she stated that GEICO's own evidence "refutes the allegation that the use of the trademark as a keyword, without more, causes a likelihood of confusion." That is a clear signal that Google's policy on trademarks and keywords is lawful.

What has generated the confusion is another part of the ruling, of little significance to Google, that relates to the use of "GEICO" in ad text. Google already has a policy that prohibits advertisers from using someone else's trademark in their ad text when the trademark owner objects. Our policy on that is here.

It's been our longstanding policy -- dating back to well before GEICO filed its lawsuit against us -- to block use of a trademark in ad text when the trademark owner objects. GEICO said that there were instances when their trademark appeared in competitors' ads even after GEICO objected. In her December oral ruling, the judge called this a "narrow issue," and said that Google and GEICO should "see whether or not there can be a resolution of what is left in the case." In the recent written decision, she reiterated these points, and explained that while she thought that the ads with "GEICO" in the ad text were confusing, she hadn't decided whether Google was liable for that.

Judge Brinkema's decision is consistent with several other court opinions. A court in Austria recently ruled in our favor, concluding that the use of a trademark to trigger ads isn't likely to confuse consumers. A German court has also ruled in our favor on this issue. And in a case not involving Google, a federal appeals court in the United States recently reached the same result in a keyword-triggered ad case.

We're very pleased with Judge Brinkema's decision, which tracks our AdWords trademark policy. The decision is a victory for consumers.

Finally, even though we believe our current policy strikes a good balance between advertisers, users and trademark owners, don't be surprised if our policy evolves over time. We believe it is possible for an advertiser to create an ad that uses a trademark in a legal and non-confusing way - after all that is what comparative advertising is all about.