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Google AdWords don't infringe Trade Mark law
23 September 2009
Google has been offering advertisers the right to buy keywords corresponding to well known trade marks. These AdWords allow businesses to ensure their web page appears whenever a relevant keyword is used by someone using Google's search engine.
French luxury brand Louis Vuitton objected to such advertising on the basis that its name and reputation were being used by other brands to promote their own sites.
The key question was whether Google had the right to sell AdWords in the form of brand names for the purposes of internet search advertising.
Advocate General’s opinion
The Advocate General has published an opinion that Google has not infringed trade mark rights for the following reasons:
- The mere display of a relevant internet site on entering a keyword does not in itself constitute trade mark infringement.
- The risk of confusion to the consumer is not great enough. The Advocate General noted that internet users are well aware that searches using keywords do not just bring up the website of the trade mark owner, but rather many sites that may be of relevance. It may be the case that the trade mark owner’s site is not what the internet user was looking for when they entered the keyword.
- Information relating to or concerning the trade mark should not be restricted purely to the owner of the trade mark. Google and its AdWords were found by the Advocate General to be more in keeping with information society services, as there is no service or product being sold to the general public.
What does this mean?
It appears from the Advocate General’s ruling that those whose trade marks carry with them a reputation will have a tougher job in arguing that Google has caused damage to their trade mark purely as a result of AdWords.
The trade mark owner will have to be able to point to a specific instance where the association with a third party has caused damage to their trade mark, beyond mere use of a keyword.
In light of this opinion, the value of the sponsored link to brand owners may be diminished; if anyone can use a brand name as a keyword, the public may end up discounting the relevance of the sponsored link as they will know it is not really associated with the brand they are looking for.
Of course the flipside is that Google searches will just become pages and pages of sponsored links, as search engine hits can be very lucrative business. Can brands afford to miss out?
What should you do?
- If search engine results are a key part of your marketing strategy, you may wish to consider purchasing all relevant AdWords relating to your brand. This may go beyond your actual trade mark, but will ensure your site or advertisement is brought up when those keywords are used to search for a specific product or name.
- Ensure all internet traffic is diverted through one domain name, to boost traffic to your site.
- If your website is the only official website for your product or brand, make it known! State the obvious on your homepage.
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