It does feel a bit like Christmas. Although the blogosphere seems to continue hibernating the increase in searches for the upcoming ECJ decision leaves little rooms for doubt that we all are quite excited about the decision expect for around 08:30 Vienna time. From previous publications of the ECJ I know that the press is usually informed first which means that we are deemed to wait until the document will be released at around noon.
If you can’t wait (Impatient You!) feel free to click on this link >>here<< to check the Curia website.
But before we all freak out and try to speed read through the decision, trying to be the first blog indexed by Google to contain a summary of the judgement I’d like you to step back on last time and to think about which questions the upcoming decision might answer.
Do we really think the ECJ will answer all our questions? I don’t think you. There are just too many right now to be decided:
– Shall be see the keyword advertising process as one single process, or will the ECJ follow Maduro’s concept of splitting it into a “booking” (no sale of goods) and a “displaying” (no likeliness of confusion) steps?
– Will the ECJ decide on the liability of Adwords alone or will it decide about “both sides of the coin“.
– Will the court also consider the much litigated “Keyword Suggestion Tool“?
– Will the court eventually come up with something like a duty for Google to check if the term the advertiser is about to book has been registered in the respective target area. If yes, shall Google also check if the Nizza classes of the products and services of the advertiser and the TM-holders are the same. (The second sentence is a joke).
– Will the follow the arguments of the GA concerning the fact that web users do have the capability to differentiate between an ad and the website of the trademark holder or a licensee?
– Will the court eventually consider the display of search results and ads in detail, establishing kind of guidelines concerning the placement etc (or Google’s design change in 2007, changing the background colour or Top-Ads)?
– Will the court also try to close all the litigation loopholes in national law (telling the courts to stop applying their national civil law, criminal law or law of unfair competition onto keyword advertising cases)?
– Will the court follow the French terminology or will it follow the GA’s terminology, describing ads as “ads” (above or besides the search results), the organic search results as “search results” and ads which are shown inside the list of search results as “paid placement” or “Keyword Buying“?
– Will the court follow the suggestion of national courts to establish the protection for the advertising and the communication-function of famous trade marks?
– Will the court consider the different levels of protection for trade mark holders in Europe? Will French, German and Austrian trade mark holder can still oppose against the sale of their TM as a keyword, English TM-holders can’t.
– Will the ECJ finally deliver a feasible and reasonably easy to understand definition of the term “trademark use”?
– Will the ECJ find Google’s search engine service to be covered by the provider liability exception? If yes, what about AdWords and the fact that Google is one of the few search engines now (already) displaying ads on their query page?
Before closing my laptop now two more things: I am looking forward to attend the IPKat’ Google AdWords Rapid Response Seminar seminar and I’d like to point your attention to a French podcast by Frédéric Glaize, Bertrand Pautrot, Gilles Ringeisen and Cédric Manara, that will be published (aired) shortly some time soon after the publication of the ECJ’s decision…