What is the role of the brand in the economic traffic?
First of all, we must bear in mind that the function of the trademark, as recognized by national and international trademark law, is to “guarantee to the consumer or end user the identity of origin of the product or service that is designated by it, allowing him to distinguish said product or service from those that have another origin, the owner of a trademark is entitled to prohibit any third party from using in the course of trade, without its consent, any sign identical or similar to its trademark, for goods or services that are not or not similar to those for which it is registered or when it enjoys a reputation in the State and when, with the use of the sign, it is intended to take unfair advantage of the distinctive character or; of the reputation of the trademark or may be detrimental to the owner.”
What’s happening with the use of brands in Adwords ads?
The Adwords business moves billions in advertising and we have already been able to find different conflicts that have reached the courts, mainly in Europe, but we also have cases close to us in Spain. The situation has been oscillating between the protection of the trademark holder and the consideration of fair or unfair competition by whoever may use a trademark within its keywords within the Adwords system. Of course, Google’s interest is in the highest bidding for the words that are most in demand in its search engine, whether they are part of a trademark or not.
Recently, in February 2017 our Supreme Court has ruled on a procedure that originated in 2013 for claim of illegitimate use of trademark in the Google Adwords sponsored ads program; this implies the generation of jurisprudence in Spain on this matter from this judgment, which will influence the next judicial decisions in this regard. The judgment states that the company that has used the trademark of another to advertise through Adwords “proposes an alternative to the services of the owner of the notorious trademark, without offering a limitation to such services, without causing a dilution of the trademark and without undermining its other functions, so that it represents a healthy and fair competition in the sector of …. which, therefore, constitutes the -just cause- that excludes the unlawfulness of the conduct”.
In my opinion, after this ruling, the usefulness of the trademark to protect the interests of its owner in the advertising traffic on the Internet is worth little or nothing, unless we can prove clear confusion that leads to unfair competition.
[cta titulo=”¿Quieres más información sobre Derecho digital?” imagen=”/wp-content/uploads/2017/07/derecho-digital-imagen_retocada.png” parrafo=”Te facilitamos las soluciones legales que necesitas para el correcto desarrollo de tu negocio y cualquier actividad empresarial o de marketing que lo requiera.” enlace=”https://www.agenciareinicia.com/contacto/” boton=”ME INTERESA”]
Can trademarks be used to benefit SEO?
It seems clear that using trademarks as keywords in Adwords is quite accepted by the current judicial trend – at least in Spain -, so we can use them, but for the moment, we cannot use them for SEO, i.e. include them in the “titles” (h1, h2, h3…) of our Web page, nor in general, in the programming of the same or exposed in images that induce confusion about us being the owners of the trademark or holding any right of use over it, such as distribution.
Regarding the use of a registered or notorious trademark in the links pointing to a competing Web page, to offer alternative products or services that it offers, from my point of view, necessarily implies a use of the trademark of the products and services of the beneficiary of those links, that is to say, the owner of the domain that is linked. Therefore, the SEO positioning of a website for the search of another’s trademark through the use of “link building” techniques is a trademark exploitation prohibited by the Trademark Law and European regulations.
