Search engines make billions of dollars each year selling keywords to businesses to advertise their products and services online. Businesses often bid for keywords that are trade-marks or trade-names of their competitors. Understandably this has generated considerable litigation around the world against search engines such as Google and their customers, much of it unsuccessful.
The recent Canadian case, Vancouver Community College v. Vancouver Career College (Burnaby) Inc., 2015 BCSC 1470 affirmed that the owner of a trade-mark cannot succeed in a passing off action against a person who buys and uses the trade-mark of a competitor as a keyword unless, the person can prove that that use causes or is likely to cause confusion. The court made these types of cases difficult to pursue by also holding that the potential for confusion cannot arise before a searcher reaches the advertiser’s website.