Google’s AdWords do not infringe trade marks?
Posted by Emil A. Georgiev on 25 September, 2009
Google has been no stranger to legal controversy in recent years. One of the hotly contested issues courts are currently debating involves the legality of Google AdWords, Google’s lucrative advertising program that is the source of nearly half of its revenue. The AdWords program allows advertisers to purchase words or phrases related to their businesses that will bring up their websites under “sponsored links” when those keywords are typed into Google’s search engine.
The issue at the center of the controversy is whether Google can legally sell and advertise those words which are trademarked terms. For businesses looking to protect their trade marks, Google’s practice of selling and advertising trademarked terms has raised questions as to its liability for trade mark infringement.
The French Cour de Cassation has recently made a referral to the European Court of Justice (ECJ) with questions concerning the use of Google AdWords. These issues arose out of litigation brought against Google by trade mark owners, including Louis Vuitton, who object to the reservation by Google customers of search keywords matching their registered trade marks.
In his Opinion, Advocate General Poiares Maduro suggests that Google has not committed a trade mark infringement by allowing advertisers to select, in AdWords, keywords corresponding to trade marks.
The Advocate General further recalls that trade mark rights cannot be construed as classical property rights enabling the trade mark owner to exclude any other use. Accordingly, internet users’ access to information concerning the trade mark should not be limited to or by the trade mark owner even if it involves a trade mark which has a reputation.
Advocate General’s opinions are not binding on the ECJ, though the Court follws them in about 80% of all cases.
In my personal view this Advocate General’s opinion is very problematic for trade mark proprietors as, given a coresponding judgment of the Court, it will weaken proprietors’ position and ease springboard marketers and imitators to exploit the goodwill and reputation arising out of the trade marks in question.
This entry was posted on 25 September, 2009 at 13:23 and is filed under trade mark. Tagged: ad words, advocate general, ECJ, google, louis vuitton, poiares maduro, trade mark infringement. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
Keyword advertising actionable under privacy law? « From Vegas To Legal said
[...] of such trade marks proprietors’ claims (see Google AdWords Litigation update for the US and Advocate General Poiares Maduro’s opinion on Google’s AdWords to the ECJ for Europe) might have brought a Wisconsin law firm to observe this set of problems through a [...]
Black Belt Live Case Study Review said
Thanks for taking the time to discuss this, I feel strongly about it and love learning more on this topic. If possible, as you gain expertise, would you mind updating your blog with more information? It is extremely helpful for me.
Emil A. Georgiev said
Hi, you may reckon I will update the blog on issues like that!
Sherryl Lueckenbach said
Personally I feel that Google Buzz’s release was a little premature, especially the privacy concerns. I also think that Google’s most likely going down the same future that Windows experienced around the time of Windows ME. The latest products and products seem to be less thought out and I feel that rushed in an attempt to be 1st to market, and compete with a competitors release. The privacy issue was was a problem that didn’t require was a very simple issue to figure out, a very simple idea session would have shown such issues. Do you think Google may have received too much credit last year?
Julio Deshazior said
Good information in your blogpost, I watched a report on tv yesterday about this same thing and since I am going to be married in two weeks and the timing could not have been better! thanks for the tip!, I have bookmarked, thanks Julio Deshazior