Yes, in most cases competitors can bid on your trademark as a Google Ads keyword. Google’s trademark policy does not restrict trademarks used as keywords, and federal courts have generally held that buying a competitor’s brand name as a keyword, without more, is not trademark infringement. The picture changes when a competitor puts your mark in the ad text in a confusing way, or when the ad and landing page as a whole are likely to mislead consumers about who they are dealing with.
This article explains how Google treats trademark keywords and ad text, how courts apply the likelihood of confusion test to keyword advertising, and the practical steps brand owners can take, including one antitrust lesson from the 1-800 Contacts litigation.
How Trademark Keyword Bidding Works
Search advertising platforms let advertisers choose keywords that trigger their ads. A company selling project management software can bid on a rival’s brand name so that a user who searches for that brand sees the advertiser’s sponsored result above or near the organic results. The keyword itself is invisible to the searcher. What the searcher sees is the ad text, the display URL, and the “sponsored” label.
Brand owners often see this as free-riding on the goodwill they built. Advertisers see it as the online equivalent of placing a product next to a competitor on a store shelf. Both Google’s policy and the case law draw the line mostly at what the consumer sees, not at the keyword behind it.
Google Ads Trademark Policy: Keywords vs. Ad Text
Google’s policy separates two uses of a trademark:
- Keywords: Google states that it will not restrict the use of trademarks as keywords. A trademark complaint to Google will not stop a competitor from bidding on your brand name.
- Ad text: Google may restrict the use of a trademark in ad text when the ad comes from a direct competitor or uses the mark in a confusing, deceptive, or misleading way.
Google’s policy also describes situations in which it generally will not restrict trademark use in ad text, such as resellers whose landing pages are primarily dedicated to selling or clearly facilitating the sale of the trademarked goods, informational sites about the trademarked products or services, and uses of a term in its ordinary descriptive meaning rather than as a brand.
Filing a Trademark Complaint With Google
Trademark owners can submit a complaint through Google’s reporting tools. According to the policy, Google accepts complaints against specific advertisers identified by their URLs, and only within the countries and industries where the owner has shown trademark rights. When Google upholds a complaint, the restrictions generally apply on an ongoing basis to ads using the same second-level domain in their final URL. A complaint is often the fastest and least expensive first step when a competitor is using your mark in its ad copy.
What Courts Have Said About Keyword Advertising
Trademark infringement under the Lanham Act requires use of a mark in commerce that is likely to cause confusion. Courts have largely accepted that buying a trademark as a keyword is a “use in commerce,” so keyword cases usually turn on likelihood of confusion.
Network Automation v. Advanced Systems Concepts (9th Cir. 2011)
In Network Automation, Inc. v. Advanced Systems Concepts, Inc., one software company bought its competitor’s mark, ActiveBatch, as a keyword. The district court issued a preliminary injunction, relying on the so-called “Internet troika” of factors: similarity of the marks, relatedness of the goods, and shared use of the web as a marketing channel. The Ninth Circuit vacated the injunction. It agreed with the Second Circuit that purchasing a trademark as a keyword is a use in commerce, but held that the troika does not answer whether confusion is likely in a keyword case.
Instead, the court identified the most relevant factors in that case as the strength of the mark, evidence of actual confusion, the type of goods and the degree of care consumers are likely to use, and the labeling and appearance of the ads and the surrounding context on the results page. The court also observed that the default degree of consumer care is rising as online commerce becomes commonplace.
Rosetta Stone v. Google (4th Cir. 2012)
Rosetta Stone sued Google itself over its policy of allowing trademarks as keywords and, in some cases, in ad text. The district court granted summary judgment for Google. The Fourth Circuit affirmed on vicarious infringement and unjust enrichment but vacated summary judgment on the direct infringement, contributory infringement, and dilution claims, finding factual disputes, including evidence Rosetta Stone offered of actual confusion, that had to be resolved on remand. The decision did not hold Google liable, but it showed that keyword cases can survive summary judgment when there is real evidence of confusion.
1-800 Contacts v. Lens.com (10th Cir. 2013)
1-800 Contacts sued a competing contact lens retailer whose ads appeared in response to searches for 1-800’s marks. The Tenth Circuit affirmed summary judgment for Lens.com on all claims based on keyword use that did not produce ads displaying 1-800’s mark. Data in the record showed users clicked on Lens.com’s ads in only 1.5% of the instances the challenged keywords generated them, which the court found could not support an inference that consumers were likely to be lured away.
The court reached a different result on ads placed by Lens.com’s affiliates that did display 1-800’s mark in the ad text. It reversed summary judgment on contributory infringement because the evidence could support a finding that Lens.com did not take reasonable steps to stop those ads once it learned of them. The lesson for advertisers is that responsibility can extend to affiliates who use a competitor’s mark in ad copy.
Likelihood of Confusion Factors in Keyword Cases
Every circuit uses its own list of confusion factors, but in keyword advertising disputes the analysis tends to focus on a few practical questions:
- What does the ad actually say? An ad that names the competitor’s brand in the headline, or implies affiliation, is far riskier than a generic ad for the advertiser’s own product.
- Is the ad clearly labeled? Courts consider the sponsored label and how the ad appears on the results page as a whole.
- Who is the customer? Buyers of expensive or technical products are generally expected to use more care than impulse buyers.
- Is there evidence of actual confusion? Customer complaints, misdirected inquiries, and reliable survey or click data can make or break a claim.
- How strong is the mark? Distinctive, well-known marks receive broader protection.
- Is the use nominative or comparative? Truthfully referring to a competitor to compare products may be protected by nominative fair use, so long as the ad does not suggest sponsorship or endorsement.
Practical Steps for Brand Owners
- Monitor your branded search results. Search your marks regularly across devices and locations, capture screenshots of competitor ads, and save landing pages. A trademark monitoring program can make this systematic.
- Register your marks. Google’s complaint process looks for trademark rights in the relevant countries and industries, and federal registration makes those rights easier to demonstrate.
- Use Google’s complaint process for ad text. If a competitor uses your mark in its ad copy, a policy complaint may resolve the issue without litigation.
- Bid on your own brand terms. Owning the first ad position for your own name reduces the value of a competitor’s bid.
- Send a targeted demand when warranted. A cease and desist letter focused on confusing ad copy or landing pages is more persuasive than one objecting to keyword bidding alone.
- Negotiate carefully. Competitors sometimes agree to add each other’s marks as negative keywords. Those agreements can carry antitrust risk, as discussed below.
The Antitrust Caution From 1-800 Contacts v. FTC
After years of keyword disputes, 1-800 Contacts settled with a number of competing online retailers, which agreed to stop bidding on 1-800’s trademark terms. The Federal Trade Commission challenged those settlement agreements as anticompetitive restrictions on search advertising. In 2021, the Second Circuit vacated the FTC’s order in 1-800 Contacts, Inc. v. FTC, holding that the Commission erred in treating the agreements as inherently suspect and that, given the procompetitive justification of protecting trademarks, the FTC had not shown a violation under the rule of reason.
1-800 Contacts ultimately prevailed, but only after lengthy administrative and appellate proceedings. Businesses considering agreements that limit keyword bidding between competitors should tailor them to a genuine trademark dispute and have them reviewed with antitrust exposure in mind.
Frequently Asked Questions
Can competitors bid on my trademark in Google Ads?
Generally, yes. Google’s trademark policy states that it will not restrict trademarks used as keywords, and courts such as the Ninth and Tenth Circuits have found that keyword bidding alone is unlikely to cause actionable confusion. The risk for the advertiser increases when the trademark appears in the ad text or the ad and landing page suggest an affiliation with the brand owner.
Does Google allow trademarks in ad text?
Google may restrict trademarks in ad text when the ad comes from a direct competitor or uses the mark in a confusing, deceptive, or misleading way. Its policy describes exceptions, such as certain resellers and informational sites, and descriptive uses of words in their ordinary meaning. Trademark owners can file a complaint identifying the advertiser’s URL, within the countries and industries where they have rights.
Is bidding on a competitor’s trademark infringement?
Usually not by itself. Courts generally treat buying a trademark as a keyword as a use in commerce, but infringement also requires a likelihood of confusion. In keyword cases, courts look closely at the ad text, labeling, consumer care, and evidence of actual confusion. In 1-800 Contacts v. Lens.com, low click-through data defeated an infringement claim based on keywords alone.
How do I stop a competitor from using my trademark in Google Ads?
Start by documenting the ads and landing pages. If the competitor uses your mark in its ad text, file a trademark complaint with Google. If the ads are misleading, a targeted cease and desist letter may resolve the issue. Litigation is an option when there is evidence of confusion, but it depends heavily on what consumers actually see.
Can competitors agree not to bid on each other’s trademarks?
They can, but those agreements carry antitrust risk. The FTC challenged 1-800 Contacts’ settlements in which rivals agreed not to bid on its trademark terms. The Second Circuit vacated the FTC’s order in 2021, but only after years of proceedings. Agreements limiting keyword bidding should be tied to a genuine trademark dispute and reviewed with antitrust issues in mind.
Protect Your Brand in Paid Search
Keyword bidding on your brand name is usually lawful, but confusing ad copy, misleading landing pages, and affiliate abuse can cross the line. The right response depends on what consumers actually see and what evidence of confusion you can document.
If a competitor is using your trademark in search ads, or if you have received a complaint about your own keyword campaigns, the trademark attorneys at Revision Legal can help you assess the conduct, use platform complaint processes, and enforce your trademark rights when necessary. Contact us through the form on this page or call (855) 473-8474.
