Google AdWords, keywords and trade marks : a comparative study of the law

Google's AdWords program provides advertisers who have purchased one or more "keywords" to manipulate Google's automated search facility by promoting advertisements for their own products or services every time a Google customer uses that keyword in a search. Advertisers generally choose as keywords a word or words related to their own products, services, brands, or trade marks, but increasingly and more controversially they may select keywords related to trade marks owned by a competitor. The use of another trader's trade marks or brands as keywords has been the subject of litigation internationally and has created complex issues for regulators. A fundamental question is whether traditional trade mark and consumer laws remain appropriate as a means of regulating and protecting traders and consumers in the face of new technologies and international electronic commerce. Alternatively should the law be changed to acknowledge that Google AdWords provides the e-trader with the technological means to compete in a more robust and effective way than is possible in the traditional offline environment and that this contributes to a better service for the consumer? This article focuses on the challenges for the courts in deciding questions about the suitability of trade mark law and consumer law for addressing keyword advertising and compares the approaches taken by the courts in the United Kingdom with those in Australia and New Zealand. It recommends that international laws be invoked by regulators to provide more consistency and to acknowledge the interests of both traders and consumers in the online environment.