Injunction Requires Negative Keywords in Future Adwords Campaigns

By Eric Goldman

Orion Bancorp Inc. v. Orion Residential Finance LLC, 2008 WL 816794 (M.D. Fla. March 25, 2008).

It looks like courts/lawyers are finally getting savvier about broad matching (see my previous blogging on the legal understanding of broad matching in the Rhino Sports, Hamzik and Picture It Sold cases). In a default judgment over trademark infringement using the term “Orion,” the plaintiff’s lawyer got the judge to order a restriction on the defendant:

from purchasing or using any form of advertising including keywords or “adwords” in internet advertising containing any mark incorporating Plaintiff’s Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term “ORION” as negative keywords or negative adwords1 in any internet advertising purchased or used.

(emphasis added)

According to this injunction, then, if the defendant buys the keyword ‘bank” and broad matches it, the ads still should not show up for a search on the term “Orion Bank.” Perhaps there have been other injunctions with similar requirements to use negative keywords, but this is the first I’ve seen. (I did a search in Westlaw on the term “negative keyword” and this was the only injunction I found). Going forward, I think it’s a logical addition to any injunctive relief request in a trademark infringement case.

HT: Tom O’Toole

UPDATE: Sarah Bird provides some helpful context for the injunction.