European Court To Review Whether Google Can Sell Ads On Trademarked Terms

from the hopefully-a-little-sanity dept

Wed, Jun 4th 2008 4:35pm — Mike Masnick

While US courts have (mostly) finally realized that simply selling search terms based on someone else's trademarked name should not make Google liable, French courts haven't been so enlightened. The huge fashion retailer Louis Vuitton won a lawsuit against Google, because some advertisers had purchased search ads on the term "Louis Vuitton" to advertise "Louis Vuitton Fakes" and "Louis Vuitton Replicas." It's hard to see the common sense reasoning to support LV in this case. In fact, the ruling seems problematic on two separate accounts -- both on the question of whether this was a trademark violation and whether it's Google who should be liable even if it is a trademark violation.

On the trademark question, a trademark is not about ownership of the mark itself, but it was designed to prevent customer confusion (i.e., telling someone that they were buying a Louis Vuitton product when it really wasn't). While the name is being used to sell counterfeit products, there shouldn't be any customer confusion here since the advertisements make it quite clear that the products for sale are fakes. No one will click on such an ad and think they are buying a legitimate item. So it's difficult to see how that leads to any sort of consumer harm.

On the liability question, even if you do believe that this is trademark infringement, the infringement is on the part of the advertiser, not Google. It's the advertiser that caused the confusion with the advertisement. Suing Google for such things is simply an attempt to shift the liability from the party who actually did something, to the company with a ton of money (funny how that works).

It appears that this case is now back up for discussion, as the case now moves out of France and into the European Court of Justice. Hopefully that court will be more reasonable in its approach to dealing with this particular issue.

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Filed Under: eruope, keywords, search ads, trademark
Companies: google, louis vuitton

14 Comments

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Jake, 4 Jun 2008 @ 6:49pm

I guess it all depends on whether Google could reasonably have known that the fakes were appearing through its search engine or taken any measures to prevent it; I'm not familiar with the law in France, but in some countries, anyone becoming aware that an offence is being committed has a duty to report it on pain of being held complicit.
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- R. H., 4 Jun 2008 @ 7:15pm
  
  Re:
  My question is, is it illegal to sell a fake or replica of a trademarked item if you admit clearly and upfront that it's a fake? If I buy something based on an ad that is titled, "Louis Vuitton Fakes", I'm not going to expect it to be a real Louis Vuitton item.
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Web guy, 4 Jun 2008 @ 7:33pm

Give me a break
Louis Vuitton sounds desperate. Can't make money selling your over priced stuff sue someone that is profitable.
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steveballmer, 4 Jun 2008 @ 7:42pm

No such thing as justice in EU
Everybody should know what I think of European Laws, they are stupid, socialist and contradictory! But, sometimes that is a good thing! You see, they are so confused about what their own laws are from state to state that we can pick and choose which to "interpet" as being in full compliance with! LOL, By the time we pay those greasy-haired, black-toothed, garlic-smelling, cheese-sucking, shack-dwelling, lie-telling, funny-talking, American-hating, baggy-pantsed surrender-monkies, I will be a very old man introducing Windows Hologram Server 2016!
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- PaulT (profile), 5 Jun 2008 @ 8:03am
  
  Re: No such thing as justice in EU
  Erm, we're not confused about what our laws are. Sorry you're too much of an idiot to understand them, but what can you expect from someone who spends their spare time impersonating someone richer than they're ever be?
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ReallyEvilCanine, 5 Jun 2008 @ 3:49am

EU != US
I wrote the same thing three months ago: we have different laws in the EU. Comparative advertising is illegal in many EU countries and the way the laws are written basically prevents one company from using another's name in any way no matter what contesxt. Stupid? Yes IMO, but nevertheless, the law. In Germany it's the Gesetz gegen den unlauteren Wettbewerb (UWG) [Law against unfair competition], §6 and §7; I understand from a colleague that France has a similar set of laws in place.
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- Anonymous Coward, 5 Jun 2008 @ 6:39am
  
  Re: EU != US
  So in the EU if a company wanted to show a comparison of their product against a competitors they could but they could not give the product or company's name they are comparing to.
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Johnny Teevo, 5 Jun 2008 @ 5:14am

Google is God?
LOL, Dont those silly Europeans know that Google is poised to take over the World! We are taking Google here, they are above the law!

JT
http://www.Ultimate-Anonymity.com
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Tony, 5 Jun 2008 @ 7:31pm

Enlightened Europeans?
At least that's what I keep hearing - Europe is so much more civilized and enlightened that we are in the US. And they're far less litigious.
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juliana65, 21 Jan 2009 @ 1:32am

European Court To Review Whether Google Can Sell Ads On Trademarked Terms
It is an interesting post.
--------------
juliana

MLS
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sibimthw2, 21 Jan 2009 @ 2:04am

European Court To Review Whether Google Can Sell Ads On Trademarked Terms
It's a good posting.
-------------
sibi

MLS
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