Google did not violate trademark rights of Louis Vuitton, but…
As most media write today, the European Court of Justice ruled in favor of Google against Luis Vutton concerning the use of trademarks in Google AdWords. But this doesn´t necessarily mean that advertisers should start buying trademarked keywords.
We´ve been waiting for this judgement for quite a while now, and it´s finally here. The European court said Google and other advertising providers aren’t liable for keyword trademark infringement in most circumstances. But most people doesn´t seem to notice that it also says:
"If a trade mark has been used as a keyword, the proprietor of that trade mark cannot, therefore, rely, as against Google, on the exclusive right which it derives from its mark.
By contrast, it can invoke that right against those advertisers which, by means of a keyword corresponding to its mark, arrange for Google to display ads which make it impossible, or possible only with difficulty, for average internet users to establish from what undertaking the goods or services covered by the ad originate.
In such a situation – which is characterised by the fact that the ad in question appears immediately after the trade mark has been entered as a search term by the internet user concerned and is displayed at a point when the trade mark, in its capacity as a search term, is also displayed on the screen – the internet user may err as to the origin of the goods or services in question. The function of the trade mark, which is to guarantee to consumers the origin of goods or services (the trade mark’s ‘function of indicating origin’), is thus adversely affected.
It is for the national court to assess, on a case-by-case basis, whether the facts of the dispute before it point to an adverse effect, or a risk thereof, on the function of indicating origin."
This statement is in my opinion very important even though most media today seemed to forget about it.
You can not rely on Google stopping your competitor from buying your trademarks, but you should try your national court in order to stop your competitor and to prevent this from happening, according to the European Court of Justice.
Read the judgement of the court here, and a summary here.
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But if the ad can not be misunderstood (what google would define as in the interest of the searcher). e.g: "You should rather taste Pepsi" (if searched for Coca Cola), it is ok, and trademark owner has no case.
I think this means that advertisers can sue each other if they think they have been victims of trademark infringement. Google can in fact also perhaps be held liable, according to NYT (http://www.nytimes.com/2010/03/24/technology/24lvmh.html):
"Google could also be liable if its business practices were found to encourage trademark violations, the court ruled."
It seems it isn´t as black/white as some blogs, including Google´s own blog, earlier today stated.
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