Google France coming up tomorrow
Tue, Mar 23, 2010 posted by the Editors
For all those of you waiting on Google France, tomorrow, Tuesday, is the big day.
Will AdWords come, or will they not, under EU trade mark provisions?
Tomorrow we shall know
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March 23rd, 2010 at 4:23 pm
If I read it right, the ruling says that trademark holders may prohibit the use of their trademark in Google Ads if the ads in question “[do] not enable an average internet user, or enable that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party” (par. 99)
That seems like a loss for Google to me, in contrast to Maduro’s opinion, which favoured Google on all points.
March 26th, 2010 at 10:11 pm
In its ruling, the ECJ has distinguished between the position of Google and the position of advertisers.
On the one hand, the ECJ says that Google did not commit trademark infringement by offering the AdWords service, ie permitting advertisers to buy keywords corresponding to third parties’ trademarks.
On the other hand, the ECJ held that advertisers cannot use Google AdWords service so as to cause the search engine company to display ads which do not permit Internet surfers easily to understand from which company the goods or services promoted by the ad in question originate.
To put it simply, trademark owners will be entitled to challenge advertisers, on a case-by-case basis (and this will be a matter for national courts), where the ad displayed suggests that the advertiser is authorised by, or otherwise connected with, the trademark owner, or is too vague for reasonably informed Internet users to establish whether there is such a connection.
Indeed, such finding will probably discourage advertisers from purchasing keywords: which – in turn - will be detrimental to Google’s overall business.
Thus, I believe Martin is right in stressing that this ruling is a bit less favourable to Google than Maduro’s opinion. Indeed last September Maduro held that (also) advertisers do not commit trade mark infringement by selecting AdWords keywords corresponding to trade marks.