EU court: Google keywords don't violate trademark

EU court: Google keywords don't violate trademark

Summary: If you search for Louis Vuitton and get a knockoff website instead - thanks to Google's sale of the brand's name as a search keyword - is that a trademark infringement? An EU court advisor says no.

TOPICS: Browser, Google
Does Google violate the law by selling keywords that use companies' trademarks? No, says an adviser to the EU's top court, the European Court of Justice, according to Reuters. Luxury good maker LVMH (that's Louis Vuitton) sued Google over its sales of brand-name keywords.
"Advocate General Poiares Maduro considers that Google has not infringed trade mark rights by allowing advertisers to buy keywords corresponding to registered trade marks," the European Court of Justice said in a statement on Tuesday.

Trademark does not extend to search advertising keywords, Maduro concluded, since the selection of the words is a matter between Google and its customers.

When selecting keywords, there is thus no product or service sold to the general public. Such a use cannot therefore be considered as being a use made in relation to goods or services covered by the trade marks/ In effect, the mere display of relevant sites in response to keywords is not enough to establish a risk of confusion on the part of consumers as to the origin of goods or services.

Oh, contraire. I think there is very real risk of confusion since the ads are served in response to a user search using brand names. The service is the brand's website or online presence. This opinion seems to show a misunderstanding of the Web as something tangential to "real" commerce.

Topics: Browser, Google

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  • The thing is, it has always been legal to try to switch you to another

    product. You walk in to a travel agent and tell
    them you want to go to Paris on American. The
    salesman has a deal with United and tries to sell
    you United instead. All perfect legal.

    So, the automation of this process is not illegal

    But, that said, if Google (or any search provider)
    listed the competitors site as the most relevant
    search item, that might be illegal. In this case,
    they are marking it clearly as related advertising.
  • Could be said to actively facilitate misleading advertising

    Because unless the visible ad wording is forced to indicate that the link is NOT representing the company behind the trademark (such as by using 'like'), it gives the searcher the impression that the link IS BY the company behind the keyword. In other words, the wording of the link misrepresents the target of the link.

    Of course, the consequence is mostly going to be a waste of the searcher's time, but if the target site is fraudulent, it may open Google up to litigation or criminal charges risk in some jurisdictions.
  • Correct result

    Let us remember that Google's search engine is a private service created and paid for by advertising. However much we may have come to rely on it, Google is not a public utility.

    Google may have some duty to reject advertising from a business it knows is engaged in trademark infringement, but Google is not the policeman of the marketplace. A trademark owner can (and should) regularly check links associated with its mark and follow up with legal action when there is a problem.

    Furthermore, implicit in the court's decision is the understanding that Google is serving up links to information that are or may be related to the search terms entered by the user. A searcher who enters "Louis Vuitton" may be seeking the manufacturer, a wikipedia entry about the fashion house, or luxury leather goods in general.

    A user smart enough to search with Google is not going to be confused by the results. And, if th e owner of the mark does not like its position in the list of links served up by Google, the owner can negotiate for more visibility.