Another Bad French Ruling Against Google Over Trademarked Adwords
from the this-again? dept
It's amazing that after all these years, we're still seeing these types of lawsuits -- with these types of results. It involves the question of whether or not a company can buy an AdWords advertisement on Google using keywords that are trademarked by a competitor -- and then, secondarily, if this is trademark infringement, whether or not Google is liable. I have trouble seeing how the answer to the first question is even a yes, but French courts have repeatedly said yes not just to the first one, but to the second question as well. This time Google is being fined hundreds of thousands of euros for allowing certain trademarked words to have advertisements run against them.It's hard to see how this makes any sense at all. First, unless the ads are designed to confuse someone, there should be no question that ads against a competitor's keywords are perfectly legal. There's no customer confusion (the point of trademark law). It's no different than having your product placed on the grocery store shelf next to competing products, or (as is quite common in supermarkets these days) having a coupon print out for your product when you buy a competing one. Claiming this is trademark infringement is just a weak attempt to stifle competition by brands that don't want to compete.
That said, even if you somehow think that this is trademark infringement, it's an even bigger stretch to then pin the liability on Google. The actual party doing the "infringing" would be whoever bought and created the advertisement. Going after Google is a Steve Dallas defense: going after the biggest company that, tangentially, is involved just because it has the biggest bank account. Sure, Google makes money from the ads, but that shouldn't create liability any more than the guy who sells the paints that are used to paint a trademark-infringing billboard is liable for what's painted. Like the paint seller, Google is just a tool provider and has nothing to do with the content. Unfortunately, this bit of common sense still hasn't made it into the French court system.
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Filed Under: adwords, france, trademarks
Companies: google
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French law
I assume this is the law in the USA, but is it the law in France or Europe?
If the law is different, no matter what the opinions are, the judges have to rule on the law.
Voilà
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Searches for winzip and winrar have sponsored links which direct to malware, as do searches for a large number of popular applications.
Maybe if this frivilous money-grab by the EU were to solve that problem, the fine would have some reason behind it.
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American and French Perspectives on Trademark Keying
http://www.lctjournal.washington.edu/Vol2/a014Keenan.html
Despite the similarities between American and French law, there is a crucial distinction. The French Intellectual Property Code, Article L. 713-2, also provides that a trademark is infringed, even where there is no likelihood of confusion,40 when: (1) defendant reproduces the characteristic elements of the mark,41 or (2) defendant uses the mark in any act of commercial competition conducted with a counterfeit mark.42 This infringement provision reflects France’s view that trademark rights are akin to property rights. French trademark law is concerned with “protectible” features of trademarks such as their owners’ goodwill and reputations, which require investment of financial and intellectual resources.43 These rights are established over time and may be subject to infringement even in the absence of likelihood of confusion.
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Re: American and French Perspectives on Trademark Keying
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just
Once the people get pissed enough.. I'm sure we'll see changes come about.. heads may even roll.. literally.. ....
... if they don't surrender first...
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Re: just
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Re: Re: just
The french army training for war.
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why not
B) I've had the misfortune of dealing with french people on their home ground
c) Lovely country, shame about the protectionist attitude of the government and a lot of the people.
d) Why an asshole? They've made it clear that they will continually mess with international services in their country. Blocking them is rather obvious, and extreme.. but still obvious... the only thing remotely 'asshole'ish' was the JOKE at the end.. 'if they don't surrender first' ..
Geez.. next you're gonna say that you're going to sue me... because you don't like what I'm saying..
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Re: why not
Cut off Italy, too.
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Europe is stupid
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Re: Europe is stupid
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Huh?
Surely if the answer to the first part is "Yes" there's no problem? Do you ever read what you post?
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Re: Huh?
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Funny it was the Americans who sued MS for this first, not the Europeans
The difference was Americans let MS continue as normal after some nice payouts, europe is sticking to it's principals
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In the French case, there was no analysis of the circumstances or the manner in which the trademarked name was used. In the US case, Judge Sullivan (SDNY) went through painstaking analysis of the parties, their businesses, how they tried to work together, etc.
Someone said it above: the French courts are exceedingly deferential to their homegrown brands and can be narrow-minded in how they protect those brands. What enables this is also the fact that France is a civil law country, which means they operate off of a "rule book" that leaves relatively little room for nuance, as opposed to the US, which has a vast common law, built on the thousands of slightly different "snowflakes" of each preceding case.
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Google abandoning France would be foolish
These lawsuits against Google and other "anglo-saxon" (as the French like to say) companies are all about hobbling successful foreign companies while giving local french companies or, worse, government-sponsored research projects a chance to catch up. My prediction: once there is a french search engine capable of making money from keyword ad sales, this legal interpretation while quietly change.
*For example, during the time I worked there, they passed a law requiring all technology products to have instructions in French, rather than letting the buyer decide whether English instructions were acceptable and the maker decide whether translation was worth the cost.
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Re: Google abandoning France would be foolish
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Dont get you guys at all
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Invade!!!
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Moron in a hurry.
Curious.
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racist
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