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2010-07-13| Legal Brief - July Canadian Court Holds Keyword Advertising Campaigns Do Not Infringe on Trademark Rights

By Allison Cherundolo, Legal Staff,

Recent lawsuits in the trademark industry have brought the issue of keyword advertising as trademark infringement to the forefront of the legal community. Recently, the British Columbia Supreme Court in Canada held that this practice is entirely within the legal rights of advertisers. In the case of Private Career Training Institutions Agency (PCTIA) v. Vancouver Career College, Inc. (VCC), PCTIA, an agency charged with overseeing career training institutions that operate throughout the Province of British Columbia, alleged that VCC’s use of keyword advertising was misleading to consumers.

As part of its internet marketing campaign and strategy, VCC uses keyword advertising programs that are offered through popular search engines. These programs allow an advertiser to select certain words that describe its business or website, including the names and trademarks of its competitors. When an end user searches for one of those words, or a related word, the keyword campaign displays a link to the advertiser’s website alongside the normal search results. In this case, PCTIA sought a court order to prevent VCC from selecting the trademarks or names of its competitors in its advertising campaign on the grounds that it is misleading and deceptive to end users and customers.

In its decision, the court equated keyword advertising campaigns with traditional media forms where advertisers purchase space directly next to or near the ads of their competitors, similar to placing an ad in the Yellow Pages near another company’s number. The court stated that it is "no different than the time-honored and generally accepted marketing practice of a company locating its advertisement close to a competitor’s in traditional media."

This decision is a bold statement by the Canadian court in support of keyword advertising models. This is an important and timely decision that carries particular weight as it was issued at a time when keyword advertising has become a hot button issue in trademark law around the world.

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