Recently a case involving the ubiquitous law firm “Binder & Binder” was decided in California. Simply put, the Disability Group Inc. purchased the name Binder & Binder on Google AdWords. Both firms practice in the realm of personal injury where most cases are taken on contingency and require more quantity over quality. So the Disability Group decided that in order to help bring new clients in, they would advertise with Google.
For many, trying to figure out what consumers are searching for and how to capitalize on their advertising budget, is a time consuming and frustrating promise. The Disability Group decided to latch onto the recognition of a competitor (how they received their recognition is another story) to try to build their own brand.
What’s the Problem?
According to the BNA E-Commerce Law newsletter;
“The purchase of a competitor’s registered trademark through Google Inc.’s AdWords program for sponsored keyword advertising on the search engine website constitutes use in commerce under the Lanham Act”
The Lanham Act is a federal statute about trademark law. It prohibits trademark infringement, trademark dilution and false advertising. Here, the court said that after applying the eight-factor test of AMF Inc. v Steekcraft Boats, that it was likely there would be some confusion by consumers. The Court awarded Binder & Binder $292,000 in lost profits and damages for willful infringement. (from lawprofessors.typepad.com)
What This Means
Simply put, when utilizing Google AdWords, don’t purchase AdWords of your competitors (for example if you’re McDonalds, don’t purchase Burger King as a search term). However, there are some questions that do come up, such as the term “Xerox” and “white out.” Both of these terms are fairly common, but are also names of companies, if you ran a copy machine manufacturing company, could you purchase the name Xerox on Google AdWords?