What Does Google Allow?

Even if Google allows it, using a competitor’s trademark in your keyword strategy could still expose you to trademark infringement claims. Here’s how:

1. Likelihood of Confusion

Trademark law primarily protects against the “likelihood of confusion.” If users might be misled into thinking your product or service is affiliated with or endorsed by your competitor, you’re entering risky territory. Even if the trademark doesn’t appear in the ad copy, courts have occasionally ruled that using a competitor’s trademark in keyword bidding can contribute to consumer confusion.

• The Ninth Circuit has held that using a trademark as a keyword to trigger advertisements constitutes a use in commerce under the Lanham Act CJ Prods. LLC v. Snuggly Plushez LLC, 809 F. Supp. 2d 127 S&L Vitamins, Inc. v. Australian Gold, Inc., 521 F. Supp. 2d 188. However, liability depends on whether the use creates a likelihood of confusion, which is assessed using the Sleekcraft factors and other relevant considerations. Peninsula Cmty. Health Servs. v. Olympic Peninsula Health Servs. PS, 2023 U.S. Dist. LEXIS 45519 Jason Scott Collection, Inc. v. Trendily Furniture, LLC, 68 F.4th 1203
• The consensus view is that merely purchasing a competitor’s trademark as a keyword does not constitute infringement unless there is evidence of likely confusion, not just business diversion. § 28.02 How Rights and Priority Are Acquired. Seguros R. Vasquez, Inc. v. Aguirre, 2020 U.S. Dist. LEXIS 110732

2. Unfair Competition

Using a competitor’s trademark to divert traffic to your website could be seen as an act of unfair competition, especially if your business directly benefits from someone else’s brand recognition.

3. Bad Faith or Deceptive Practices

If your intent is clearly to piggyback off a competitor’s brand or mislead consumers, you may face legal consequences. Some jurisdictions view this as a deceptive trade practice, which can result in penalties beyond just taking down the ad.

• False advertising claims under the Lanham Act require proof that the defendant made a false or misleading representation of fact in a commercial advertisement, which is likely to cause confusion or deceive consumers. Pom Wonderful LLC v. Coca Cola Co., 727 F. Supp. 2d 849 Appliance Recycling Ctrs. of Am., Inc. v. JACO Envtl., Inc., 378 Fed. Appx. 652
• The content of the advertisement and the manner in which the trademark is used are critical in determining whether the use constitutes false advertising.  7A.09 Search Result Confusion. Dexter-Lawson Prods. v. R.B. Graphics Equip., Inc., 1979 U.S. Dist. LEXIS 8715
• To establish a false advertising claim, the plaintiff must show that the defendants use of the trademark in the advertisement is false or misleading and likely to deceive consumers. Lipton v. Nature Co., 71 F.3d 464Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes & of Malta v. Fla. Priory of Knights Hospitallers of the Sovereign Order of St. John of Jerusalem, Knights of Malta, the Ecumenical Order, 816 F. Supp. 2d 1290

The content of the advertisement is crucial .If the advertisement falsely implies an affiliation or endorsement by the trademark owner, this could constitute false advertising Hard Rock Cafe Int’l (USA) Inc. v. Morton, 1999 U.S. Dist. LEXIS 8340 Durango Herald, Inc. v. Hugh A. Riddle & Riddle Directories, Inc., 719 F. Supp. 941. However, merely purchasing a competitor’s trademark as a keyword, without more, is insufficient for liability.