This Week in Search: Why Trademarked Keywords Are Going to be Difficult to Enforce

eading about the judge’s ruling yesterday that stated companies may not use trademarked searches in there paid search text ads is really nothing new. PPC platforms like Google Adwords have been enforcing this for a few years now. I remember setting up and interesting campaign a while back where a client wanted to purchase the keyword “Botox” and also use the word in a series of text ads. The term is trademarked by Allergan and I was not able to include in either my keyword list or ad text. I am sure there are hundreds of words that meet the same criteria, trademarked words we are using everyday and are now more commonplace than the generic term for them. Kleenex, Band-Aid, Windex, iPod, and Velcro are all terms we all say whether we are using tissues, bandages, window cleaner, mp3 players and hook and loop fasteners – from those brands or not. Since they are widely used it should be a testament to the power of the brand, but enforcing the improper use of someones brand or trademark violations has always been hard.

The more commonplace the term or phrase the harder it is going to be to enforce the trademark violation. Google, Yahoo and the other paid search platforms probably do not keep track of every trademarked term like the case of “dating ring” trademarked by John Hamzik who sued Zales for using the term. Until someone brings litigation onto your company you are not going to know you are at fault. We use many of the everyday phrases without knowledge of who owns them.

What’s more is the impact this can have on organic search results. I quick check of “just do it” Nike’s famous slogan reveals more than 1 million pages of results. How many of those are in trademark violation? I’m not exactly sure but I know it is more than a handful. If you are using “just do it” in your HTML title tag to drive people to your site then that is form of search advertising which can now get you in trouble. If Google, Yahoo and the rest are to comply with the trademark violation ruling then they’ll have to rewrite their algorithm to filter out the results in question.  This will ensure they are not aiding the advertiser at fault – which they are not going to do.

Trademarked terms for now will remain as they always have, hard to detect and hard to enforce. Sure there will be the occasional lawsuit brought on by some hopeful entrepreneur looking to seek damages but don’t waste your time checking your keyword lists against the United States Patent and Trademark Office search.