In the Google France Sarl v Louis Vuitton Malletier SA (C-236/08)  E.T.M.R. 30 appeal case, the ECJ held that by allowing advertisers to purchase their competitors trade marks in the form of keywords Google has not infringed trade mark law.
Google’s search engine displays results based on their relevance to the words searched by their users and displays sites most associated with those key words in a descending order of relevance.
Google also offer the ‘AdWord’ service which allows competitors bid for key words in order have their adverts displayed as relevant to the key word searched. The result is an advertising message/link to that company’s site which appears under ‘sponsored links’ either to the right or at the top of the results most associated to the search.
This has created a competitive market place where companies are bidding on their own trade marked brand names in the form of key words against competitors who have no association with that trade mark.
The ECJ stated that Google are merely a referencing service provider which allowed advertisers to use signs identical or similar to trade marks but does not itself use those trade marks and therefore are not liable to the trade mark proprietors.
However, advertisers who arrange for Google to display advertisements which cause confusion as to origin (supplier) of goods or services or which suggest that there is a link between the advertiser and the trade mark owner will be liable for trade mark infringement.
Advertisers are required to make it plain that they do not have any commercial link with the brand owner to prevent being sued by the trade mark’s rightful owner for infringement.
Essentially this means Google does not have to monitor everything that goes on in AdWords, it must simply react promptly when a trade mark owner provides notice of any infringement.
It also provides trade mark proprietors with the unrelenting task of safeguarding their brand names in an environment which is changing on a minute to minute basis.
As of 14th September 2010 Google is to harmonise its keyword procedure across Europe with a ‘notice and take down’ policy where if a trade mark proprietor complains to Google the infringing advert will be removed.