This point of view has been a few days coming as the implications of a U.S. District Court in NY ruling in April have yet to be realized. I hope you are paying attention.
A couple weeks ago, Judge Thomas J. McAvoy ruled for John Hamzik, who holds a trademark on “The Dating Ring,” against well known jewelry store Zales. The store apparently caught John’s attention with their use of the keyword phrase “dating ring” in their paid search program and on site results for a search of the same kind. Where Zales may have crossed the line is through the appearance of the copy, “Dating Ring-Zales,” in their ad.
McAvoy found Zales in violation of trademark infringement.
Others have lost trademark infringement claims related to the purchase of trademarked keywords however this is the first finding that adds weight to Google’s policy of letting trademark holders prevent others from referencing their trademark in ad copy. The question of trademark use in and around paid search is confusing as rulings seem to flip flop one way and then the other leaving us to, perhaps, worry about our own programs in search.
The question is the degree to which the courts truly understand search and the possiblities that might occur. Are vendors liable for campaigns run on behalf of advertisers? Will advertisers have to pour through trademark libraries to ensure their campaigns are clean or seek legal approval for each buy? What rules apply when broad match is in place causing an advertiser to appear on a trademark without even knowing?
I for one suggest waiting out the broiling debate, instead of erring on the side of caution; as long as you are supporting the brand or trademark promoted, I doubt many would bring action against you (without, at least, seeking you out to clean up your program). On the other hand, not just competitors need beware, I never would have thought “dating ring” was a trademarked term even though the merchant has made it quite clear (subtle hint in the domain?); I could just have easily run a program promoting, ahem, “heart rings.”
