*ECJ: Advocate General on French Keyword Advertising Cases: The use of trademarks to trigger ads constitutes no Infringement

picture-52 The ECJ’s Advocate General Luís Miguel Poiares Pessoa Maduro has published today his opinion on the three French Keyword Advertising Cases Google Inc. v Louis Vuitton Malletier, Google France v Viaticum, Luteciel keyword cases (C-236/08, C-237/08, C-238/08).

For the Press release of the ECJ, click >>here<<

For the full text of the opinion, click >>here<<

It has to be explicitly mentioned at this point that the opinion at hand only deals with the question if the use of a term as a keyword to trigger an ad on Google’s Adword platform constitutes an trademark infringement or not. the opinion does NOT deal with other uses, such as the use of a term in the text on the ad(!). Thus the opinion does not give any guidance for cases in which the disputed term is used in the Ad (Adv+).

Short summary of the findings:

“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 AC said in his opinion that the use of the trade marks was limited to the selection of keywords, which concerned only Google and the advertisers. […] 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

[…] trade mark rights cannot be construed as classical property rights enabling the trade mark owner to exclude any other use. Accordingly, internet users’ access to information concerning the trade mark should not be limited to or by the trade mark owner even if it involves a trade mark which has a reputation.

The Advocate General finds that both Google’s search engine and AdWords constitute information society services.[…] the liability exemption for hosts provided for in the E-Commerce Directive should not apply to the content featured in AdWords […]

[underlining added by Austrotrabant]

Summing it all up in a nutshell the AC suggests that it constitutes no infringement in itself on the side of Google to let the advertiser chose a keyword and as a logic consequence of the advertiser to select a keyword. As the selection of a trademark as a keyword by an advertiser could also serve legitimate purposes (purely descriptive use, comparative advertising) it is generally admissible. (152)

Still national laws might prohibit certain uses by AdWords and/or the advertiser, which might involve a risk of confusion (as of the origin of the goods and services) or might affect functions of the trademark such as those related to the protection of innovation and investment. (153)

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