Today the European Court of Justice, the highest court in the EU, issued its long awaited ruling in a case brought by Louis Vuitton, giving Google a huge victory, saying that”
“”Google has does not infringe on trademarks by allowing advertisers to purchase keywords corresponding to their competitors’ trademarks,”
Louis Vuitton and two other firms brought suit alleging that it infringed in its trademark by allowing online advertisers to buy search keywords identical to its trademarks.
The court went on to say however:
“Advertisers themselves, however, cannot, by using such keywords, arrange for Google to display ads which do not allow Internet users easily to establish from which undertaking the goods or services covered by the ad in question originate.”
“Google therefore may be liable for policing trademark infringements in advertising content on its site, but that is for the national court to decide.:
The French court asked the European Court of Justice to rule on whether European trademark law allows trademark owners to prevent Google from selling the right to specify their trademarks as search keywords.
The court also asked whether European e-commerce law shields Google from liability for unauthorized trademark use until it is notified by the company owning the trademark.
France’s highest court, the Cour de Cassation, will have the final say on the issue.
This ruling follows the Courts own interim ruling on the matter issued last September.
Google still faces 5 other pending cases at the European Court of Justice and at least 8 cases in the US.
I have never been able to reconcile in my little head how Google can be allowed to sell ads under a bang on trademark to the trademark holders competitors, yet if we own a domain, even a generic term like Haywood, that happens to be trademarked, we lose the domain if ads are showing for competitors of the trademark holder.
There seems to be a logical disconnect in the law when it comes to advertising on domain names and advertising on Google
Then again Google spends quite a bit more in lobbyists then the domain industry domain.
The ability of companies to bar competitors from buying their TM has been going on for years. I am glad to see this decision and hope it starts a string of precidents moving forward. I believe this falls in the category of competitive and comparitive advertising. As long as the ad distingushes itself from the TM and their is no “reasonable” confusion on the part of the visitor, should be allowed.
Regarding the question of justifying the Google ad buying ability vs. the inability to serve TM ads on a “generic” page is a good one but I think there are ways to look at it that make sense.
A persons expectation, when using Google search, is to be served relevant content and links against their search request from which to make a destination decision. As long as a competitor is not infringing and causing confusion with it’s ad and description, it has a reasonable right to be heard/seen, to assist in that destination decision. On an infringing domain(even if it can be argued as generic) I am not sure it always needs to be ruled a violation of TM, but a TM based ad on a potential TM site is evidence (not proof) of a violation. UDRP panelist are using that evidence to help determine their decisions. The job of a respondent is to successfully argue why having that ad is not a violation.
Not a lawyer so probably too many holes to fully support but at least I think it makes sense. 😉
I’m in search marketing more so than domains and it baffles me as well. I really don’t understand what the difference is whether I us the TM word to make a PPC bid, write it in a Ad Content or use it in a Domain. ?!?!>!>!&^%$
this kind of advertising can’t be done in a different way, but Google has too much power (as happened with Google News, Google Books, the acquisition of online ads companies, the use of thumbnail images, etc.)
but Google could pay a small royalty for the trademark names used in its ads
Mike, I know you’ve practiced plenty of law; you have an insight to the legal system most people do not. However, my own experience has shown that the deeper the pockets of a company, and (almost more importantly) the longer the arms of the litigant, the more protracted and muddled a legal case can become. It may not matter the issues are ridiculously simple. When dealing with people, even alleged authorities on the matters of law, and its equal, tempered application, the benefits and shortcomings of experience, temperament, political perspective, intelligence or lack thereof, and even emotional maturity or immaturity, will play a larger role than the most clear language of the law.
Spirit of the law is certainly necessary for fairness in any judiciary; the ghosts of obfuscation, however, haunt our legal system in greater measure. All it takes is the right amount of money, the properly-worded argument, and the effective manipulation of the rules of procedure to make impotent the most valiant of our courts.
And that, my friend, is how Google gets away with what they do, whilst we pay dearly when a domain like LomaLinda.net is hijacked by a university hospital. I should sue every other Danny Pryor in Florida and the USA for even thinking about using my name, right?
Sure. That would work.
Google always the best and will stay forever!