Google`s Adwords not infringing trade marks according to

Spotlights - décembre 2009
Google's Adwords not infringing trade marks according to
European Court of Justice Advocate General
Google operates an advertisement system, called Adwords, which allows advertisers to buy keywords that
correspond to registered trade marks. Different trade mark holders have initiated legal proceedings against
Google, claiming this practice infringes their trade mark rights. In the case initiated by Louis Vuitton among
others, the French Cour de Cassation referred the question to the European Court of Justice. On 20
September 2009 the Advocate General answered this question in favour of Google.
When one types a keyword into a search engine, two types of results are usually provided: a range of sites relevant to the
keyword ("natural results") and, alongside, advertisements for certain sites ("ads"). Natural results are provided on the
basis of objective criteria, determined by the search engine. This is not the case with ads: ads are provided because
advertisers pay for their sites to feature in response to certain keywords. This is possible because the search engine
provider makes those keywords available for selection by the advertisers.
Google's Adwords is an advertisement system allowing advertisers to select keywords which correspond to registered trade
marks. The search results produced by Adwords are referred to as "sponsored links". Their position and format differentiate
them from the natural results produced by a Google search. Every time an Internet user subsequently clicks on the link to
an ad, Google is remunerated in accordance with a price agreed beforehand.
In principle, a trade mark holder can prohibit third parties from using his trade mark in advertisements. However, the
Advocate General believes however that the trade marks are only being used for Google's own Adwords service and not for
identical or similar goods and services covered by the trade mark. It follows that neither Google nor the advertisers are
committing trade mark infringements by displaying or selecting keywords in Adwords that correspond to registered trade
marks.
According to the Advocate General, a link is being created between the keywords corresponding to the trade marks and the
sites that are advertised, including the goods and services sold through these sites, which may possibly even include
counterfeit goods. This link is not sufficient to cause confusion for consumers as to the origin of the goods and services,
since Internet users are aware that they will have to sift through the results of their search, of which there are often a large
number. No assessments will be made solely based on the fact that the ads are displayed in response to keywords
corresponding to trade marks. Neither Adwords nor Google's search engine affects or is liable to affect the essential
function of the trade mark. The risk of confusion lies in the ad and the advertised sites, but these are issues outside the
scope of the questions referred to the Court of Justice.
The use by Google in Adwords of keywords which correspond to trade marks cannot be prohibited, even though trade
marks which have a reputation are involved. Trade mark proprietors do not have an absolute right of control over the use of
their trade marks. Consumers must be able to benefit from the competitive internal market where parallel import is
legitimate. The access of Internet users to information concerning a trade mark should not be limited by the trade mark
proprietor in such a way that trade mark proprietors could de facto prevent Internet users from viewing other parties' ads
for perfectly legitimate activities related to the trade marks.
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The opinion of the Advocate General is not legally binding for the Court of Justice. The judgment is expected in the next
months.
Véronique Pede
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