UPDATE: Google Can Sell Trademarked Keywords-EU Court Advisor
September 22 2009 - 6:29AM
Dow Jones News
Google Inc. (GOOG) should continue to let advertisers use the
trademarks of major brands as search keywords but should be liable
for their wrongful use, according to a legal opinion prepared for
Europe's highest court ahead of a final ruling on the issue.
Google is before the European Court of Justice, or ECJ, in
connection with a French case in which a number of companies,
including LVMH Moet Hennessy Vuitton (MC.FR) complained that Google
had infringed their trademark rights by allowing advertisers on the
world's dominant search platform to use company trademarks as
keywords. When a search is made on these keywords, the results will
include links to rival products or to firms selling counterfeit
goods in the sponsored links section. The advertising of
counterfeit goods is against Google's terms of service.
The French court hearing the case, the Cour de Cassation, is
asking the ECJ to rule on whether trademark owners can legally
prevent Google from selling the right to use their trademarks as
keywords.
"Google has not infringed trademark rights by allowing
advertisers to buy keywords corresponding to registered
trademarks," said the court's Advocate General Poiares Maduro.
However, Google may be liable for featuring content in its
adwords program that directly violates trademarks, Maduro said.
The ECJ's advisor said that in most cases Google's use of
trademarked keywords doesn't infringe the law, as Internet users
expect more information and advertising to be returned as a result
of a search query than just the products of the firms that own the
trademarks.
"We believe that selecting a keyword to trigger the display of
an ad does not amount to trademark infringement, and that consumers
benefit from seeing more relevant information rather than less,"
said Harjinder Obhi, Google's Senior Litigation Counsel, in an
email.
However, the court advisor said that the search engine should
still be considered liable for the wrongful use of keywords, with
the burden of proof lying with the trademark owners.
Google has argued that it is an online platform, simply offering
a space for advertisers, and it should be advertisers that ensure
they don't infringe trademarks, as it wants to avoid the huge
expense of policing everything that is done on its sites.
Maduro said Google isn't simply an advertising platform as the
search giant has a financial interest in users clicking on
advertising links, for which it receives revenue based on the
number of clicks made.
Google said it noted with interest the Advocate General's
opinion, and awaits a final decision from the court in a few
months.
LVMH wasn't immediately available to comment.
Legal opinions are routinely prepared in ECJ cases by senior
court advisors known as Advocates General. The Advocate General's
proposed ruling isn't binding, but final rulings follow the opinion
in around 80% of cases.
-By Mike Gordon and Peppi Kiviniemi, Dow Jones Newswires; +352
691 180 766; mgordon.dowjones@gmail.com