Google's green light allowing brands to bid on competitive trade marks was one of the big stories in UK search over the past six months. Â We've conducted research at Harvest Digital that suggests that the result has not been the free-for-all that some predicted. Â In fact many big brands are not even bidding on their own brand, let alone competitors.
Why is this? Â Normally people would cite two reasons: that brands have entered into 'gentleman's agreements' not to bid on each other's brands, and that Google's relevancy rules simply make it uncompetitive to bid on other brands.
But a third reason is that the legal position in the UK is still somewhat unclear. Â The precedent set in the "Mr Spicy" case said that it was OK for search engines to accept advertisements triggered by a brand term. Â But UK lawyers believe - and are telling their clients - that one brand could still be sued directly by another for trademark bidding.
For instance, Iain Connor - an Intellectual Property Law specialist at Pinsent Masons - thinks that UK law forbids the practice of triggering adverts with another person's trade mark:
"In the UK, we believe that where a search engine allows a trade mark to be used as an trigger to generate a competitor's sponsored link, that would amount to an infringement by the search engine of the trade mark. Such use is likely to affect the essential function of a trade mark and take unfair advantage of that mark."
