Google Allowed To Auction Trademark Terms – European Court of Justice
By Anna Johnson on March 29th, 2010The European Court of Justice has ruled that Google can auction off keywords consisting of trademarks to all Google Adwords advertisers, not just the owners of such trademarks.
This is bad news for brand name holders such as LVMH Moët Hennessy Louis Vuitton, the French luxury goods company which participated in the case and which argued that only trademark owners should be allowed to buy such terms in the case.
In the absence of definitive law disallowing the practice, Google has been selling trademarked terms in the United States and some European countries, including Britain and Ireland.
Whilst Google’s practice has attracted various lawsuits – for example, the lawsuit brought by Rosetta Stone – Google has justified its practice based on the argument that selling brand names as ad keywords to multiple bidders helps consumers find product reviews, sellers of second-hand goods and other information.
While the European Court of Justice said Google was not liable for trademark infringement for selling brand name keywords, it cautioned that individual advertisers could still be liable if their use of another company’s trademark misled consumers. Equally, Google was responsible for promptly removing ads that misled consumers.
The court said advertisers:
“cannot, by using such keywords, arrange for Google to display ads which do not allow Internet users easily to establish from which undertaking the goods or services covered by the ad in question originate.”
You should certainly get legal advice – specifically advice on the law applying in your jurisdiction – but the upshot of all this seems to be that when it comes to Google Adwords, in general:
- You can bid on terms that consist of others’ trademarks;
- Google will not be routinely policing anyone’s use of a trademark in their Google Adwords ads;
- Trade mark owners are responsible for monitoring use of their trademarks;
- Using a trademark by purchasing a keyword or using it in a Google Adwords ad may still infringe someone’s trademark;
- A trademark owner can still sue you for infringing their trademark;
- If a trademark owner complains to Google about someone infringing their trademark, Google is likely to disallow the ad and possibly the keyword from the advertiser’s campaign.
