A Wisconsin appeals court this week affirmed a circuit court’s ruling that it’s OK to use trademarks as keywords to trigger the display of paid search ads. The court’s conclusions are in line with search engines’ policies with regard to trademark bidding and with a Federal case decided last year in California.
The Wisconsin case, which involved two personal injury law firms, centered around what it means to “use” a name for advertising purposes.
In the 2009 lawsuit, the owners of the Habush Habush & Rottier firm accused competitor Cannon & Dunphy of violating their privacy by using the terms “Habush” and “Rottier” as keywords in their search advertising campaigns on Google, Yahoo and Bing.
The Wisconsin statute in question says people are entitled to relief if their privacy is invaded, and one definition of invasion of privacy includes:
The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian
The appeals court affirmed the circuit court ruling, likening bidding on trademarks to one business locating its office near that of another, more established business, to take advantage of the flow of potential customers who come there.
“This strategy undeniably takes advantage of the name of the established business and its ability to draw potential customers, but the strategy does not ‘use’ the name of the business in the same way as putting the name or image of the business in an advertisement or on a product,” the appeals court wrote in its decision.
This question of whether it’s acceptable to use competitors’ trademarks as keywords, has been the subject of longstanding debate in the search marketing business, but it’s growing clearer that what has become standard practice — because of search engines’ policies — will likely stand up to legal scrutiny.