The federal court in Schleswig-Holstein ruled against an advertiser whose AdWords campaign produced results with a competitor’s word mark in its ads. Although the advertiser may not have used the competitor’s word mark as a keyword, he was aware of the (unauthorized) use in Google’s rendering of his ads. Since this (known) unauthorized use created confusion, it was irrelevant that Google ‘created’ the ads, and the advertiser who configured AdWords was liable for the infringement.
http://www.dr-bahr.com/news/weitreichende-stoerer-haftung-fuer-google-adwords-kampagne.html
jbho: Tricky one. Part of the benefit of using Google is the ability to leverage dynamic titles to increase reach. This ruling seems to want to prohibit using those valuable functions.
For example, if I make and sell chocolates, I could use keyword insertion to better match consumer intent. So if I use “Buy {KeyWord: Chocolate}” for my ad title, AdWords will fill in the blanks and could return:
“Buy Dark Chocolate”
“Buy Milk Chocolate”
“Buy Quality Chocolate”
“Buy 82% Cacao Chocolate”
If Google through random processing creates:
“Buy Domori Chocolate”
Should I be on the hook that a competitor’s name showed up in my ad?
I guess the result here is if you know a competitor’s name is showing up in your ads, you need to re-tune your AdWords to prevent that.
UPDATE – 9May2017: The ruling has been published and appears to confirm my initial assessment. If you knowingly configure AdWords to spoof you competitors word marks in your ads, you are liable. If it happens accidentally, you may have more leeway. But once you know, you have to fix it.
http://www.suchmaschinen-und-recht.de/urteile/Stoerer-Haftung-fuer-Google-AdWords-Kampagne-ab-Kenntnis-Oberlandesgericht-Schleswig-20170322/
