PPC Ads in Trademark Infringement

I have worked on a number of cases where Pay-Per-Click (PPC) advertising campaigns were central to complaints in trademark infringement lawsuits (and also defamation suits).

It was long established that advertisers could run afoul of trademark infringement claims if they used a competitor’s brand name in the copy of their text ads on Google or Microsoft Bing search engines. This was such a well-known guidance that paid search managers generally knew not to do this.

I’ve just written an in-depth article on the Pay.Per.Click Expert Witness website that provides a history of things that can be involved and some of the earliest cases that set precedents around the practice. (See: “Targeting PPC Ads to Competitor’s Brand Names – a Frequent Source of Infringement Claims“) I also have written a brief piece that explains what a Pay Per Click Expert Witness is that lists a number of the qualifications and issues that witnesses like me work upon. (See: “What is a Pay-Per-Click (PPC) Expert Witness?“)

A primary reason why there are increasing trademark claims involving PPC Ads is that Google has made multiple changes over time that result in more incidents occurring. Fifteen-plus years ago, Google had systems that automatically blocked or detected-and-later-suspended companies from including competitors’ registered trademark names from appearing in their ads. But, in 2009, Google began allowing companies to include the brand names of competitors in ads with fewer restrictions. In the last ten years, Google also steadily reduced the precision of its advertising keyword matching types, causing their system to match brand names to common types of products and services (and to match product/service keywords to brand names). This means that companies began seeing their competitors’ ads showing up more frequently when their brand names were searched upon, and this has increased sensitivity as it makes it seem that a competitor is aggressively trying to woo customers away — even though the competitor has not been intentionally targeting a brand’s customers.

In yet another recent change, Google changed its Trademark policy in 2023 to require trademark owners to submit specific complaints against specific advertisers and specific ads rather than allowing trademark owners to submit a blanket complaint against all competitors. The result of this change makes it likelier that companies will notice more potential infringers appearing in published ads than previously where they would be automatically blocked from publishing infringing ads in many cases.

The changes within the search advertising environment are resulting in a greater spike of trademark infringement cases. Large organizations will need to set internal guidelines and ensure their search ad management personnel are trained to understand the risks of targeting ads to competitors’ brand term queries, and the risks of including brand names within the text of PPC ads.