It’s no secret that search engines like Google have changed the landscape of nearly everything in our lives. But the courts are still trying to figure out just what to do about search engines when it comes to trademark infringement.
Competitors bid on ownership of certain search terms, including words or group of words that may be protected under an established trademark. That’s introduced some messy legal territory: What rights does a trademark holder have, when customers search keywords and competitors’ information comes up in the search engine?
Trademark owners claim that the value of their trademark decreases when online search engines sell “their” keywords to competing companies. Basically, a trademark is supposed to protect the holder of that trademark, and give them exclusive rights to profit from those words or phrases. But suddenly, with the increased use of search engines, competing companies are seemingly benefiting financially from the very words that are trademarked by someone else. People are searching for certain keywords, and companies who don’t own the associated trademark are popping up in search engine results.
If you feel confused on some of the finer points, you’ve got good company: Courts are still figuring out exactly what all this means, too. For now, trademark owners have not won any claims based on keywords alone.
To win a claim, trademark owners would need to prove that a third party (like a search engine) causes significant confusion for customers searching for specific trademarked keywords. But for now, that kind of confusion has been difficult for trademark holders to prove.
This remains one of the key issues affecting the value of a brand’s worth online, and something that we at Licensing Haus are keenly on top of. Where the courts may take this ruling could change how the value of a brand is monetized in years to come. For example, if a brand truly does own all of its search word power, then it would stand to reason if could potentially profit off of the ad sales for using that term immensely boosting the value of the IP and making way for a new crop of business models in licensing. On the other hand, if the courts sway that brands don’t own the rights to their keywords, then brand dilution is almost certainly guaranteed while padding the profit margins of major search engines.