On 23 March 2010 the Court of Justice of the European Union (ECJ) rendered a judgment in the case Google/Louis Vuitton e.a. LVMH had started court action against advertisers using its exclusive trademark as an Adword for imitation products. And there were a travel agent and a marriage agent that were confronted with competitors who used their trademarks as an Adword. In these combined cases the Adword itself was not visible in the text, but the ad was triggered when starting a Google search on the trade mark. The ECJ decision is good news for the many users of Adwords. 1. For the marketing of products or services that compete with those of the trademark owner, a trademark Adword may well be used. For example: T-mobile can use ‘Vodafone’ as an Adword as long as the linked ad (its website) makes clear who is behind the promoted goods or services. Internet users must be able to see whether there is a link between the advertiser and the trademark owner, or not. 2. Advertisers can use a third party trademark as an Adword to promote the sale of second-hand (genuine) trademark products. This is not surprising. 3. In addition: using a trademark as an Adword to promote imitation products is a trade mark infringement. The ECJ had brought news for Google as well. The trademark owners held Google liable for damage now that Google maintains the advertising programme, proposed Adwords itself and even profited from each click-through. However the ECJ holds that Google is not liable for the Adword or for the content, as long as it operates neutrally (‘technically, automatically and passively’). Liability could be at stake if Google is involved to much with the content of the ads and with selecting Adwords. In addition Google may be liable if it does not dually use and execute an adequate notice & take down procedure. Maarten Haak
|
office Emerald House Jozef Israëlskade 48-G Amsterdam, the Netherlands t +31 (0)20 - 305 3066 www.hoogenhaak.nl |
post PO Box 76780 1070 KB Amsterdam e info@hoogenhaak.nl f +31 (0)20 - 305 3069 chamber of commerce 34314579 |
On 23 March 2010 the Court of Justice of the European Union (ECJ) rendered a judgment in the case Google/Louis Vuitton e.a. LVMH had started court action against advertisers using its exclusive trademark as an Adword for imitation products. And there were a travel agent and a marriage agent that were confronted with competitors who used their trademarks as an Adword. In these combined cases the Adword itself was not visible in the text, but the ad was triggered when starting a Google search on the trade mark. The ECJ decision is good news for the many users of Adwords. 1. For the marketing of products or services that compete with those of the trademark owner, a trademark Adword may well be used. For example: T-mobile can use ‘Vodafone’ as an Adword as long as the linked ad (its website) makes clear who is behind the promoted goods or services. Internet users must be able to see whether there is a link between the advertiser and the trademark owner, or not. 2. Advertisers can use a third party trademark as an Adword to promote the sale of second-hand (genuine) trademark products. This is not surprising. 3. In addition: using a trademark as an Adword to promote imitation products is a trade mark infringement. The ECJ had brought news for Google as well. The trademark owners held Google liable for damage now that Google maintains the advertising programme, proposed Adwords itself and even profited from each click-through. However the ECJ holds that Google is not liable for the Adword or for the content, as long as it operates neutrally (‘technically, automatically and passively’). Liability could be at stake if Google is involved to much with the content of the ads and with selecting Adwords. In addition Google may be liable if it does not dually use and execute an adequate notice & take down procedure. Maarten Haak