BC Court Finds Use of Competitor’s Mark in Keyword Advertising Is Not Passing Off

On August 20, 2015, the British Columbia Supreme Court (Court) released its decision in Vancouver Community College v Vancouver Career College (Burnaby) Inc, 2015 BCSC 1470, a case addressing the marketing practice of bidding on a competitor’s trade-mark as keyword advertising for your own business.

By purchasing a competitor’s mark in a keyword advertising campaign, an advertiser can cause a search engine to include a link to that advertiser’s web site in the results returned from a search that included the competitor’s mark.  Courts in various jurisdictions have addressed this practice with differing results.

The Court found that this practice does not constitute passing off unless, among other things, it causes a likelihood of confusion in a person after that person reaches the advertiser’s website.  Practically speaking, this may be more tricky to prove than a likelihood of confusion measured at an earlier point (eg at the time the link is clicked), resulting in greater potential difficulty for passing off claims based on keyword advertising.