EU says Google AdWords are fair game

While the EU is content to slam Intel and Microsoft for billions in antitrust suits, it takes a rather more relaxed view on fellow US giant Google, presumably on the grounds that it’s not evil.

EU Advocate General Poiares Maduro has given the matter of Google AdWords some consideration and announced that no trademarks have been infringed by allowing advertisers to buy key words that are registered trademarks.

A bunch of companies including Louis Vuitton had argued that allowing rivals to pay for their ads to appear alongside a Google search for their products was a violation of trademark law. Google allows internet users free access to the Google search engine. On entering keywords into that search engine, users are presented with a list of natural results selected and ranked according to their relevance to the keywords, determined by objective criteria.

Says Maduro, “Google also operates an advertising system called ‘AdWords’, which enables ads to be displayed, alongside natural results, in response to keywords. These ads typically consist of a short commercial message and a link to the advertiser’s site; they are differentiated from natural results by their placement and design.

“Through AdWords, Google allows advertisers, in return for payment, to select keywords so that their ads are displayed to internet users in response to the entry of those keywords in Google’s search engine. Google supports its search engine with its income from AdWords.

“In France, legal proceedings have been initiated by trade mark owners against Google as to the legality of the use, in the AdWords advertising system, of keywords corresponding to trade marks. It has been established in those proceedings that entering certain trademarks into Google’s search engine triggered the display of ads for sites offering counterfeit versions of the products covered by the trade mark or identical or similar products of competitors.

“The Cour de cassation, called upon to settle the issue at last instance, has asked the Court of Justice whether Google has committed a trade mark infringement by making available such keywords to advertisers and if the company can be held liable for the content featured in AdWords.”

In his opinion delivered today, Advocate General Maduro suggests that Google has not committed a trade mark infringement by allowing advertisers to select, in AdWords, keywords corresponding to trade marks. He highlights that the use of the trade marks is limited to the selection of keywords which is internal to AdWords and concerns 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 identical or similar to those covered by the trade marks.

Similarly, advertisers themselves do not commit a trade mark infringement by selecting in Adwords keywords corresponding to trade marks. By contrast, the Advocate General finds that Google, by displaying ads in response to keywords corresponding to trade marks, establishes a link between those keywords and the sites advertised which sell products identical or similar to those covered by the trade marks.

However, in the view of the Advocate General, such a link also does not constitute a trade mark infringement. In effect, the mere display of relevant sites in response to keywords is not enough to establish a risk of confusion on the part of consumers as to the origin of goods or services. Internet users are aware that not only the site of the trade mark owner will appear as a result of a search in Google’s search engine and sometimes they may not even be looking for that site.

He also notes that many of the sites reached by internet users by entering keywords are perfectly legitimate and lawful even if they are not the sites of the trade mark owner. Maduro also rejects the notion that Google’s actual or potential contribution to a trade mark infringement by a third party should constitute an infringement in itself.

He opines that instead of being able to prevent, through trade mark protection, any possible use, including many lawful and even desirable uses, trade mark owners would have to point to specific instances giving rise to Google’s liability in the context of illegal damage to their trade marks.

However, the Advocate General’s Opinion is not binding on the European Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court of Justice are now beginning their deliberations in this case. Judgment will be given at a later date.

It is perhaps germane to add at this juncture that when this writer was responsible for marketing for a software company that shall remain nameless, he took it upon himself to buy Google AdWords for every product produced by that company’s competitors, ensuring that an ad for our products and services appeared alongside every Google search for the bad guy’s stuff.

And very entertaining it was too.