Second Screen Ad Campaigns – the new frontier for keyword litigation?

Last week I went to the incredibly cool Future TV Advertising Forum and, amongst other things, I saw a demonstration of some prototype systems for running synchronised second screen ad campaigns.

By the “second screen”, broadly speaking, I’m referring to a tablet which someone uses on his/her lap whilst sitting on the sofa watching TV (there’s an interesting debate about whether it’s the tablet or in fact the TV which is now the second screen, but that’s another story).

One particular product by Cisco and Innovid caught my eye. At a high level, it involves a system which picks out various keywords spoken during a programme played on TV which could then be used to trigger relevant and targeted ads to the user on his/her tablet. The system is so sophisticated it can even determine the “context” in which the word is being used to determine whether it’s a “positive” or “negative” mention of the word. For example, if someone on the TV was slagging off a brand, you wouldn’t want that to trigger an ad for that brand on the second screen, whereas if someone was watching a cookery programme, that would be a good opportunity to trigger ads for cooking utensils etc. There’s more detail about the Cisco / Innovid solution in this blog post here.

What is particularly interesting about the system from a legal perspective is that it provides the potential for brands to purchase their competitors’ trade marks as trigger keywords, which, if appearing in the broadcast audio stream could trigger an ad on the tablet.

Anyone who knows a bit about trade mark law will know that if there’s one area which has caused an absurd amount of litigation in Europe, it’s the purchasing of competitors’ keywords in order to trigger sponsored search ads on search engines (the most well known of course being Google’s Adwords service).

If you’re reading this blog you’ll probably know how keyword advertising works. If not, in summary, if you want to advertise a website on Google, you can choose certain keywords which are “related” to your business – see Google’s guide here for how it works. More than one advertiser can purchase the same keywords, so advertisers can bid for how high up the list of sponsored ads they want their link to appear.

The problem therefore arises where a third party trade mark is purchased as a keyword and the third party feels this leads to an unfair advantage being taken from its trade mark. It’s these issues which lead to cases such as Google v Louis Vuitton, L’Oreal v eBay, and most recently Interflora v Marks & Spencer, where the High Court held in May this year that the use by M&S of the keyword “INTERFLORA” to advertise its flower-delivery business on Google was an infringement of Interflora’s trade mark.

The outcome from Interflora appears to be that a trade mark owner will struggle to prevent others from using its trade mark in keyword advertising unless the use somehow causes detriment to the trade mark’s distinctive character or reputation, or makes it difficult to determine whether the advertised goods/services originate from the trade mark owner or a third party etc.

It will be really interesting to see whether the type of synchronised second screen ad campaigns described above could prove to be the next battleground for keyword litigation, taking it from the web, to the TV, to the tablet.