The European Union highest court, The European Court of Justice, issued an “interim legal opinion” that Google does not infringed on trademark holders rights, by allowing advertisers to buy keywords of registered trademarks.
In this case, Louis Vuitton sued Google saying that Google sold ads under search results for Louis Vuitton, to companies marketing counterfeit or replica goods of Vuitton.
The Advocate General, Poiares Maduro, said “Google has not committed a trademark infringement by allowing advertisers to select, in AdWords, keywords corresponding to trademarks”.
The Advocate General went on to note that the use of the trademarks 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.
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.
Today’s “opinion” will now be taken into account by a full panel of EU judges, whose ruling is expected late this year or early next year.
The full panel of judges follow the Advocate General’s opinion in 80% of the time.
Obviously this would be a huge victory for Google in the EU.
Google still has several cases pending in the US, on this same issue with some lower courts already ruling against Google.
Of course to domainers the question that comes to mind is why can Google sell ads under trademarked terms but if an ad for a trademarked term, shows up on a parking page, we lose the domain?