In the cult-classic b-movie “Cool as Ice” (starring, you guessed it, Vanilla Ice), the protagonist admonishes a love interest to “drop that zero and get with the hero!”
While most advertisers can’t muster the same sort of panache that Vanilla Ice had back in the early ’90s, there is no denying the fact that advertisers like to boost the strength of their brand by attacking the credibility of their competitors.
Keyword advertising is an exciting platform where can advertisters turn the internet searches into sales opportunities. And, from a trademark perspective, it’s kind of like the Wild West, with litigation cropping up left and right and courts wrestling with issues such as “trademark use” that become elusive in this new context.
Eric Goldman has posted recently on Morningware, Inc. v. Hearthware Home Products, Inc., 2009 WL 3878251 (N.D. Ill. Nov. 16, 2009). In that case, the trademark owner sued the advertiser for purchasing its trademark as a keyword and running an ad with the following copy: “The Real NuWave ® Oven Pro Why Buy an Imitation? 90 Day Gty.”
Interestingly, the ad’s copy did not specifically reference the trademark owner’s mark. And, as Goldman notes, the trademark owner was able to survive the advertiser’s 12(b)(6) motion to dismiss.
So what’s the takeaway for advertisers interested in purchasing keywords? Goldman sums it up nicely:
“Meanwhile, advertisers buying competitive keyword advertising should take note of the risks of implicitly calling your competitor an “imitation” without explaining the relative product positioning–which isn’t possible due to the limited character count of a Google AdWords ad. Because the character limits prevent fully clarifying disclosures, advertisers should consider striking the phrase “why buy an imitation?” from their keyword advertising copy toolkit.”