Google AdWords is a juggernaut of online advertising, generating huge amounts of revenue for both Google and for AdWords account holders. It has revolutionized the way advertisers and consumers connect with each other online—and lately, it has also strained the boundaries of trademark laws around the world. Trademark holders from multiple countries have sued AdWords for allowing the unauthorized use of marks as ad text and as keyword triggers for online advertising. At the moment, the ultimate winner of this dispute is uncertain, but what is clear is that to the victor will go the spoils: the future of search engine advertising. Yet the identity of the victor is not and should not have to be limited to either Google or trademark holders. Governments should use this chance to reexamine trademark law in the light of e-commerce in order to develop a legal framework that would best harness the benefits of search engine advertising for all affected interests.
My Note, Google AdWords: Trademark Infringer or Trade Liberalizer?, explores the differing legal landscapes of the U.S. and the European Union with respect to AdWords trademark infringement cases. It demonstrates how such judicial determinations fail to fully consider the benefits of search engine advertising in democratizing trade and creating a truly free, truly online global marketplace. Instead, important trade players like the U.S. and the European Union should seize this moment to legalize the use of trademarks as keywords in search engine advertising, so that trademark law continues to further the interests of consumers and of firms.