Posts Tagged 'Google AdWords'

*ECJ Wintersteiger C-523/10: A Forum Shopping (Winter) Wonderland?

On February 16th Advocate General Pedro Cruz Villalón has published his opinion on C-523/10 Wintersteiger, a case concerning a jurisdictional matters referred by the Austria Supreme Court [OGH, 5.10.2010 17 OB 8/10s, Wintersteiger].

Just about two month later, on the 19 of April 2012, the ECJ issued its  decision on this reference for a preliminary ruling.

The court found that Google AdWords TM-disputes “may be brought before either the courts of the Member State in which the trade mark is registered or the courts of the Member State of the place of establishment of the advertiser”.

What makes the case so delicate is that Austria (place in which the TM is registered) is, in regard to Keyword Advertising cases, the most right holder friendly court in the EU [OGH, 21.06.2010, 17 Ob 3/10f, BergSpechte III], while Germany (member state of the establishment of the advertiser) is fairly liberal on this matter [BGH, 13.01. 2011, Az.: I ZR 125/07,].

We are left to see how this decision will increase legal certainty for right holders, online advertisers and of course Google itself.

I’ve updated by little chart as well:

For a deeper analysis: IPKAT: Freedom, security and justice — or skiing with AdWords Continue reading ‘*ECJ Wintersteiger C-523/10: A Forum Shopping (Winter) Wonderland?’

*ECJ Decision in C-323/09 INTERFLORA – ‘Same, Same But A Different Trademark Function’

The INTERFLORA case is based on a (seriously lengthy) reference containing 10 questions by the England and Whales High Court (EWHC) dated to May 2009. In the light of the ECJ’s Google France decisions in March 2009 the EWHC upon request by ECJ later reduced the number of questions in its reference down to 5 in mid-2010. AG Jääskinen published his opinion  in early March 2011 and the final decision by the ECJ swiftly followed  six month later.

The disputes itself concern the display of an ad by Marks and Spencer which looked like this [para 20]:

Continue reading ‘*ECJ Decision in C-323/09 INTERFLORA – ‘Same, Same But A Different Trademark Function’’

*AG’s Opinion in C-323/09 Interflora – Brief Analysis

Advocate General (AG) Jääskinen delivered his opinion on the 24th of March on the 7th ECJ Keyword Advertising case: C-323/09 Interflora Inc Interflora British Unit v Marks & Spencer plc Flowers Direct Online Limited. For a short summary on the AG’s main points please see the IPKats (in English) or the Links&Law website  (in German).

Other than reported in some newspapers the author can’t see a big ‘win‘ for TM owners as the AG repeatedly stresses the general admissibility of keyword advertising [par 45, 45] and the need to promote competition and well informed users [par 99].

  • The AG highlights that there is a special ‘secondary meaning‘ in regard to the trademark INTERFLORA (due to its franchise system [par 46 – 48]) while at the same time, the trademark itself is exceptionally distinctive or even unique [par 72].  Thus even if the court established an infringement based on Art 5 (1) TMD, the ratio of this decision will be difficult to expand onto other keyword advertising decisions.
  • Concerning the protection granted by Art 5(2) TMD the court elaborates on the preconditions of a mental link between trade mark and the keyword [par 65 ss]. The AG’s opinion is, that this precondition is fulfilled “in the rather exceptional case of the INTERFLORA trade mark” [par 72]. Although the AG finds the precondition of a mental link to be fulfilled in this special case, he later states that the M&S ad did not lead to ‘blurring‘ [par 91], ‘tarnishment‘ [par 92] or might be seen as unfair ‘free riding‘ [par 105]. As a consequence the AG didn’t see any infringement under Art 5 (2) TMD.

Continue reading ‘*AG’s Opinion in C-323/09 Interflora – Brief Analysis’

*’Belle Literie’ – French Court Finds AdWords Not To Infringe TM-Rights & Acting As A ‘Neutral’ (Hosting) Provider

On the 19th of November the Paris Civil Court of Second instance found that Google AdWords in Google France v Syndicat français de la literie has not infringed TM-rights and was furthermore as a (hosting) provider exempted from liability.This comes as a big surprise, taking into account the traditionally very trademark-owner approach of French courts. This case is however NOT ONE OF THE CASE which was REFERRED TO THE ECJ.

Questions remaining after Google France:
When discussing the issue AdWords and liability there are three aspects that need to be addressed separately:

  • The liability of Google AdWords for (direct) trademark infringement is the first issue. However this issue was one of the very few things the ECJ in Google really made clear in it’s Google France decision. In the view of the ECJ Google does not infringe third party TM as Google doesn’t use the TM in the course of trade (para 55). Thus, following the ECJ’s Google France decisions it will be very hard to a court to rule that Google infringed third party TM rights.
  • The second issue is  the liability of  individual advertisers for trademark infringements. The ECJ’s answer to this question was very vague and is currently the most important question in regards to keyword advertising.
  • The third issue concerns the indirect liability of Google as it a (hosting) provider, allowing advertisers to book keywords and to draft the text of ads. The ECJ was again very vague when it came to answering this question, and left practitioners, lawyers and judges with the smart formula that Google might only be exempted from liability for the TM-infringements of its clients if Google remained ‘neutral‘. Needless to say that the ECJ didn’t really specify what it meant by ‘neutral‘.

This is the background against which the most recent post-Google-France decision on Google France was delivered in the case “Google France / Syndicat français de la literie” by the Cour d’appel de Paris on the 19th of November 2010. Continue reading ‘*’Belle Literie’ – French Court Finds AdWords Not To Infringe TM-Rights & Acting As A ‘Neutral’ (Hosting) Provider’

*Google Slightly Changes Layout of Top-Ads – Further Blurring The Line Between Ads and Search Results?

Google announced on the 3rd of February that Top-Ads (these are the ads shown above the -organic- search results and placed on a coloured background) will be shown in a slightly different style in the future.

Ads on Google  are shown in a layout that is different from the layout of the (organic) search results. The different layouts thus might help users can (more easily) distinguish between them. The more similar the layout of ads are to the layout of search results, the more difficult it is for a user to correctly differentiate between the two.

Legal aspects:
From a legal point of view the differentiation between ads and search results is not only important from the point of the obligation to label commercial communication as such but also from a law of unfair competition point of view. As proven in the past by numerous ‘AdWords’-cases there also exists a trademark law aspect of this issue. Continue reading ‘*Google Slightly Changes Layout of Top-Ads – Further Blurring The Line Between Ads and Search Results?’

*Liberalisation of Google AdWords Trademark Policy: A Self Confident Leap Forward

As reported by the Inside Google AdWords blog and Search Engine Land, Google will conduct a mayor overhaul of its TM policy.

*Firstly it will generally allow its advertisers in the US, Canada the UK and Ireland to use third party TM in the text of their ads.

*Secondly it will allow the booking of trademarks in some European countries (including Austria, Germany , the Netherlands and France!) in which TM owners can currently object against the use of their TM. Users in these countries will in the future only be able to object against the use of their TM in the text of the ad.

Google will therefore change its AdWords Trademark Policy on the 14th of September. Google AdWords policy defines under which circumstances TM owners can file a trademark complaint against the use of their trademark as a keyword or in the text of a third party ad.

Please also take a look at the chart below (click to enlarge) and at the end of the post which might help you to understand the subject. There is also a Summary of Changes paragraph at the end of this post…

Continue reading ‘*Liberalisation of Google AdWords Trademark Policy: A Self Confident Leap Forward’

*Playing Around With The Report Function Of Google AdWords

The fact that a friend of mine has give me the chance to use the AdWords account of his (for more information please see the end of this post) enables me to dig a bit deeper into AdWords. The issues I’ve come across are for sure no rocket science, but maybe quite interesting for people interested in Google AdWords.

About two weeks ago I mentioned Google AdWords’ new Search Query Report which allows advertisers who use the “broad match” keyword option to check in detail which search queries have effectively triggered their ad and resulted in clicks on the ad. The Search Query Report function itself is not a standard function but has to be set up first by the advertiser.

Continue reading ‘*Playing Around With The Report Function Of Google AdWords’

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