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What Does a South African Court Case Tell us About AdWords Trademark Issues?

Posted on 22nd Jun 2016 by David Ogletree

Though most of us might not follow the trials and tribulation of AdWords and PPC marketing verdicts in other countries, those who have know a landmark case unfolded in South Africa this last week. For the first time ever, South Africa’s supreme court turned out a verdict in a case set in motion by confusion over branding in AdWords.


Whether you’ve managed AdWords for some time or not, or personally managed a client touched by trademark law, you know the possibility of a cease and desist is always on the table. This is especially true for those of us who advertise directly on competitor keywords, particularly when we know some of these terms are trademarked.


When it comes to ads, a quick disapproval due to use of a trademark term lets us know a specific keyword might be safe – but what happens when we strip the ad of relevant competitor keywords and just bid on them?


In South Africa, plaintiff Cochrane Steel sued rival company M-Systems for using one of its pending trademark terms “ClearVu” as an active keyword. Cochrane lost their first lawsuit, then appealed to the high court, who identified that M-Systems was not attempting to deceive customers by mimicking Cochrane’s branding or terminology. The court found that once customers hit the M-Systems site, it was evident they were dealing with M-Systems and not Cochrane; therefore there was no attempt to “misbrand” ClearVu as an M-Systems product.


There are many examples of these types of court cases in the United States. Some are settled before they get to deliberation, some are lost. For the most part, the main reason advertisers avoid anything that could get us in hot water trademark-wise has everything to do with hassle. Who wants that hassle? Who wants to deal with consulting lawyers, going to court, shelling out all that money?


We don’t particularly take a hard stand on whether or not to avoid trademarked terms, but we do want to warn people that they should be prepared to cease and desist. That’s the main crux of dealing with trademarks – you have to ask yourself if it’s worth the cost at the end of the day.


Another key point is reading up on your trademark legislation with respect to AdWords if you’re working with clients in other countries. Knowing the legal side, including any key verdicts, can determine how you operate toward your client’s best interests. Most of us aren’t lawyers and we’re no substitute for legal professionals, but knowing the field is part of knowing our craft. It just makes sense to have all the knowledge possible.

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