What’s happening with Brand Hijacking?

Many have become both aware and concerned that Google AdWords and other pay-per-click (PCC) allows advertisers to take advantage of the names and identities of their competitors through brand hijacking.

For example, Google AdWords allows advertisers to promote their website whenever a Google search includes words the advertiser chooses. As Google pictured it, a boot salesman could participate in AdWords by selecting words like “western boots” which, if searched by a Google user, would show the boot salesman’s website. Though pictured by Google representatives as a way to generate a profit for Google while directing specific users to the websites that want them, business competitors have taken advantage of Google’s program in a controversial way.

What do courts say about the legality of brand hijacking?

Instead of choosing a phrase like ‘western boots’ to generate traffic to their website, some PPC users have chosen the names, including trademarks, of their competitors to generate traffic. For example, lawyers have secured the names of their competitors in PPC campaigns.  In this way, an Internet user attempting to find a specific attorney will have a second competing attorney’s name appear in advertising because that second attorney tagged the first attorney’s name in the pay-per-click campaign.

Essentially, this piggybacking on more successful or better known identities has spawned controversy because some lawyers have claimed that they have lost business as a result of PPC advertising allowing their business competitors to commandeer clients from them who specifically type in their name.

Claiming that individuals have the right to use, and prevent the misuse of their names, the issue was litigated in a Wisconsin court recently. While the court recognized that individuals do have some ‘right of publicity’ to preserve the integrity of their names, the court found that freedom of speech guarantees extend to business people using the names of their competitors in Google’s AdwWords program.

What does this type of brand hijacking mean for the future of the internet?

While future brand hijacking litigation will determine what the internet will look like in regard to PPC campaigns, if courts use the same logic the Wisconsin court did in preserving freedom of speech, U.S.-based businesses will likely be freely able to use their competitors’ names to generate website views. This has the potential to materially devalue brands and related trademarks.

Perhaps such freedom will enable newcomers to different professions to advertise and compete in a more even-keeled manner with established businesses. However, opponents of pay-per-click (PPC) being used in such a way have strong arguments on their side in favor of an individual’s right to control the use and misuse of his or her very name in brand hijacking campaigns.