eBay Invokes Trademark on Google Keywords

Internet auction giant eBay confirmed its lawyers asked Google to stop allowing advertisers to use its trademarked terms as keywords.

According to eBay, the unusual request was granted by Google, meaning advertisers can no longer use “eBay” as a lure to get prominent placement for unrelated products or services.

“EBay has communicated with Google about the protection of eBay’s intellectual property,” said Kevin Pursglove, an eBay spokesman. “Advertisers will not be allowed to use the keyword ‘eBay’ and related keywords to help advertise their products.”

Pursglove declined to say which other terms are covered under eBay’s trademarks.

The holder of a trademark is allowed full use of pictures, symbols or words distinctly related to a product, according to the U.S. Patent and Trademark Office. However, trademarks can be referenced under “fair use” provisions, which allow a non-trademark owner to use a trademark for description or comparison of its own product. Infringement occurs when another party uses a trademark to confuse consumers into associating it with the trademark owner’s.

Pursglove said the action would not affect advertisers of legitimate eBay-related businesses, as covered under nominative fair use. For example, a Google query of “eBay for Dummies” still yields paid listings from booksellers carrying the how-to manual. He said the main targets were sellers who would use the eBay term to get searchers to visit their unaffiliated sites.

A Google spokesman declined to comment on the matter.

EBay’s move to protect its trademarked name could have wide-ranging repercussions in the search industry, according to Martin Schwimmer, a trademark lawyer.

“The search engines are being quite accommodating to trademark owners in this situation,” he said. “The problem here is there are these ancillary industries.”

Google gives wide latitude to trademark holders for asserting their rights, making advertisers responsible for obeying all trademark laws in their keywords and ad text. Trademark owners are afforded an opportunity to object to any use of their trademarks. In its policy statement, Google says it will remove any ad links that violates trademarks.

Pursglove said eBay had not contacted other paid search providers, since they do not offer a trademark-protection service like Google’s. A spokeswoman for Overture Services said trademark compliance was part of the company’s editorial review process for every listing.

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