Tuesday, 23 March 2010

Adwords: the Court of Justice favours Google

I have an instinctive dislike of the whole Adwords project, perhaps because I simply don't like being bombarded with advertising that some clever machine thinks will be of interest to me. (I make an exception, because it caused me such amusement, for the program that placed next to an email from a female friend a link to "how to write a love letter".) But where is the trade mark infringement when Google takes money to forge a connection between one person's trade mark and another person's advertisement? And is it, as some have suggested, simply analogous to renting a billboard next to one bearing your competitor's advertising?
Being an old-fashioned sort of person, I don't see it that way at all. Adwords using a competitor's trade mark lure consumers to the advertiser's site under false pretences. The consumer might realise what's going on fairly quickly, but the fact that they have been taken there at all might have done the damage. "Initial interest confusion" is the concept American trade mark lawyers talk about: "bait and snatch" also seems to sum it up rather well.
Well, the Court of Justice says pretty clearly that in its judgment today in the Google Adwords cases C-236/08 to C-238/08:

the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertisement does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.
That, it seems to me, doesn't answer questions about initial interest confusion or bait and snatch (neither expression featuring in the judgment), but makes it clear that if there is confusion or deception (neither concept featuring in the judgment, save for a passing reference to confusion in para 78) there's likely to be confusion. Few consumers are going to suffer from that sort of confusion, unless the advertiser is being downright fraudulent.
As for Google, the court doesn't believe they are using the trade mark within the meaning of the relevant legislation, and that the E-commerce directive (Article 14) also gives them a defence, provided they have not played an active role in what has happened and that they act expeditiously to remove or disable access to unlawful data.
A short and fairly pithy ruling, coming at the end of 121 paragraphs of dense and probably exhausting legal narrative and debate. I'll read the whole lot as soon as I can - but not right now.

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