Avoiding Liability When Using Keyword Advertising

The British Columbia Court of Appeal ("BCCA") in Vancouver Community College v Vancouver Career College (Burnaby) Inc., 2017 BCCA 41 has reversed a lower court decision involving whether the use of keywords in online advertising constitutes passing off. The Court found that merely purchasing another person's trademark as a keyword for advertising does not constitute passing off, but if your resulting sponsored link has nothing in it to distinguish you from the owner of that trademark, then confusion can result and you can be liable for passing off.

This decision involves two post-secondary education institutions; the plaintiff, Vancouver Community College (a public institution) and the defendant Vancouver Career College (a private institution). The plaintiff asserted common law trademark rights in "VCC". The defendant used the domain name VCCollege.ca for its website and purchased "VCC" as a keyword for the Google and Yahoo search engines. Users who searched