TRADE MARK LAW : COURT OF JUSTICE PARTIALLY CLEARS GOOGLE.
Google has not infringed trade mark law by allowing advertisers to purchase keywords corresponding to their competitors' trade marks, according to the EU Court of Justice. In an eagerly awaited judgement handed down on 23 March (1), it addressed the question submitted by the French Court of Cassation, namely whether it is lawful to use as keywords, in the context of an internet referencing service, signs which correspond to trade marks. The case pitted the search engine against trade mark proprietors Louis Vuitton (a luxury leather goods firm), Viaticum and Luteciel (tourism service providers) and Eurochallenges (an online matrimonial agency).
The court began by observing that by buying from a referencing service a keyword that corresponds to another person's trade mark, with the purpose of offering internet users an alternative to the goods and services of that proprietor, the advertiser's use of the word is in breach of trade mark law. The trade mark holders concerned may, pursuant to the exclusive right which they derive from their mark, take action against the advertisers because they undermine the function of the trade mark, which is to guarantee to consumers the origin of goods or services. It is for the national court to determine case by case whether the facts of the dispute before it point to an adverse effect on the function of indicating origin. Advertisers who use a sign corresponding to another person's trade mark to display ads do not systematically undermine the "advertising function" of the mark, notes the court, although such use is liable to have repercussions on the advertising use of the mark by its proprietor and on the latter's commercial strategy.
Provider's liability limited
On the other hand, this trade mark law may not be invoked against Google, which does not itself use these signs for commercial purposes. The mere fact of storing such data on its server without knowing its content does not mean its liability is engaged if its conduct is purely technical, automatic and passive. In this case, the liability of the referencing service provider may be limited pursuant to Directive 2000/31 on e-commerce. It is for the court hearing the dispute to assess the role played by this service provider. If it can be demonstrated that it has played an active role, obtained knowledge of the unlawful nature of the data or of the advertiser's activities, and failed to act expeditiously to remove or disable access to the data concerned, then it can be held liable.
The judgement is available at www.europolitics.info > Search = 269108
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|Date:||Mar 24, 2010|
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