Keywords Advertising: Issues of Trademark Infringement

AuthorAlthaf Marsoof
Pages240-251
Journal of International Commercial Law and Technology Vol. 5, Issue 4 (2010)
240
Keywords Advertising: Issues of Trademark Infringement
Althaf Marsoof*
althaf.marsoof@cantab.net
Abstract. The Internet has become a crucial advertising tool for modern-day businesses.
Increasingly, business enterprises are opting for online presence, and this pheno menon has
significantly transformed advertising technique s. Consumers wish to spend less time and gain
optimal results whilst searching for prod ucts and services on the Internet. In this setting, enterprising
entities, such as Google, have sought to make maximum use of the need for online presence which
has given rise to Internet advertising schemes such as G oogle’s ‘AdWords. The purpose o f this
paper is to assess the merits (or otherwise) of the recent ruli ng of the European Court of Justice
(ECJ) in Google v Louis Vuitton.
1
The analysis will compare it with the approach of courts in the
United State s and also draw on English jurisprudence. The discussion undertaken by this paper is
topical given the recent decisio n of the French Supreme Court (Cour de Cassation) which appears to
have followed the reasoning of the ECJ. The topicality is heightened given the absence o f judicial
precedence in France, and the decision to remand the ca ses back to the Court of Appeal for a case b y
case decision on Google’s civil liability.
1. Introduction
The Internet has become a crucial advertising tool for modern-day businesses. Increa singly, business enterprises
are opting for online presence, a nd this phenomenon has significantly transformed advertisi ng techniques.
Consumers wish to spend less time and gain optimal results whilst searching for products and services on the
Internet. In this setting, enterprising entities, such as Google, have sought to make maximum use of the need for
online presence which has given rise to Internet adverti sing schemes such as Google’s ‘AdWords. The purpose of
this p aper is to assess the merits (or otherwise) of the recent ruling of the European Court of Justice (ECJ) in
Google v Louis Vuitton.
2
The analysis will compare it with the approach of courts in the United States and also
draw on English jurisprudence. The discussion undertaken by this paper is topical given the recent decision of the
French Supreme Court (Cour de Cassation) which appears to have followed the reas oning of the ECJ. The
topicality is heightened given the absence of judicial precedence in France, and the decision to remand the cases
back to the Court of Appeal for a case by case decision on Google’s civil liability.
3
However, prior to delving into
the discussion it is useful to briefly outline the mechanics of the AdWo rds programme.
2. The AdWords scheme and Louis Vuitton’s allegations
Google operates an Internet search engine, which can be used freely by Internet users to search for almost
anything on the Internet. In addition, Google also provides an advertising service which enable advertisers to
display the link to t heir websites when an Internet user performs a search and the search term matches the
‘keyword’ purchased by the ad vertiser. The link of the ad vertiser would be displayed in a section titled ‘sponso red
links’. Under this programme, advertisers are permitted to select a keyword of their choice which would be used as
the trigger to display the advertiser’s link. T hus if an advertiser ‘A’ opts for a keyword ‘K’, whenever an Internet
user searches in Google using the search-term ‘K’, t he link of advertiser ‘A’ will be displayed under sponsored
*
LL.M. (Cantab.) B.Sc. (Curtin) Attorney-at-Law of the Supreme Court of Sri Lanka;
State Counsel at the Attorney General’s Department of Sri Lanka (Currently positioned as a Legal Intern at the International
Bar Association in London, UK)
1
Case C-236/08. Note that there were two other connected cases, C-237/08 and C-238/08. The Opinion of the Advocate
General (hereinafter “the AG’s Opinion”) and the Judgement of the European Court of Justice (hereinafter “the ECJ
Judgement”) are reported at [2010] ETMR 30
2
Ibid.
3
Emma Barraclough, ‘France’s top court rules in Google AdWords case’ Managing Intellectual Property [Online Resource]
(23 July 2010)

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