Google has elected to include trade marks within its Adwords programme allowing anyone to bid for someone else’s mark for use as an AdWord. If more than one person bids for the same AdWord, then Google will list the sponsored link according to much the advertiser has bid for the AdWord and Google’s own quality score for the advertiser’s website.
This has been very controversial, as owners of popular brands have found that third parties are willing to bid more for their brands as AdWords and that they must out-bid them so that they are listed above the third parties in the sponsored links.
Some brand owners have taken action.
In the recent case of Google -v- Louis Vuitton, the ECJ held:
– Where a third party bids for and successfully acquires someone else’s trade mark as an AdWord, the third party will be liable to trade mark infringement unless their advert clearly indicates to users that the goods or services referred to in the advert come from the trade mark owner.
– The sale of the trade mark by Google under the AdWord service does not infringe that trade mark.
– While Google is not generally liable for facilitating trade mark infringement through its AdWord service, it will be liable if it is notified of the infringing act of the advertiser and it does not take immediate action to remove the access to the infringing act.
This case highlights several issues which have serious implications for brand owners in relation to the use and protection of their trade mark online:
– The courts are reluctant to interfere with arguably one of the world’s largest search engines and its most profitable Adword service.
– Trade mark owners will need to look at the form of the Google advert to decide whether it is misleading to establish grounds for infringement.
If you run a business and rely on Adwords then it is advisable that you check whether the Adwords being used are trade marks. Lawdit Solicitors offer a swift and efficient trade mark search service which can reveal whether a trade mark is registered.
If you’re interested in Trade Marks and Intellectual Property and would like to find out more, please call Michael Coyle on 0800 0862 0157Â orÂ email firstname.lastname@example.orgÂ for a free no obligation chat.