Keyword advertising – what you need to know if you use broad match…

The Court of Appeal may have booted Interflora v Marks and Spencer back to the High Court for re-trial, but the consequences of its decision about negative matching should not be ignored. Google's The Court of Appeal may have booted Interflora v Marks and Spencer back to the High Court for re-trial, but the consequences of its decision about negative matching should not be ignored. Google's default setting for AdWords campaigns is called 'broad match' - under that system a user will be shown your ads if they search for a variant of the keyword you have bid on, and those variants might include your competitor's trade marks.  If your ad is vague about the origin of the goods or services advertised, you could be infringing despite not having bid on your competitor's trade marks at all!

A detailed analysis of the position can be found here. In summary, and pending clarification of the issues raised in the Interflora appeal, if you use broad match or equivalent systems you should take special care in arranging sponsored advertising campaigns. In particular:

• If you devised your campaign intending that your ads will appear when Internet users search for your competitors, or if you are aware that this will be the effect, you should ensure that your ads stay on the right side of the test in Google France even if you have not bid directly on your competitors' trade marks.


• The best way to avoid infringement is not to include your competitor's trade marks in your ad text, link or URL, and to ensure that the origin of the goods or services advertised is completely clear.  Including your own trade mark or brand name in the ad will undoubtedly help.


• But beware - are there any circumstances that could make yours a special case e.g. is there is a network in your industry of which you are not a member?  If so, if broad match causes your ad to appears in response to searches for that network, then even including your own brand name in your ad might not be enough to avoid infringing (as M&S found in Interflora).


 

If in doubt, you can avoid the problem by specifying your competitors' trade marks as negative keywords (meaning they will not appear in response to searches even under a broad match-type system), or even by avoiding broad match or equivalents altogether.