EU Court Of Justice Says Selling Ads On Trademarked Keywords Is Not Trademark Infringement

from the good-news dept

It seems like it should be common sense that Google isn’t violating any trademark laws because some of its customers buy ads using keywords from other’s trademarks. Trademark is about consumer protection — keeping people from getting confused and buying one product believing it’s made by someone else. It’s only a recent phenomenon that trademark holders have tried to stretch and extend trademark to mean they get to control all uses of it and shut down any use they don’t like. But having ads for competing products show up when someone’s looking for a brand seems like perfectly reasonable competition. Still, luxury brands, such as LVMH (Louis Vuitton Moet Hennessey), Tiffany, L’Oreal and others keep bringing lawsuits. LVMH won a case against Google in France, but that case moved up to the European Court of Justice, and senior judge there has now stepped in and said that selling ads shouldn’t be trademark infringement, though a full decision is still a few months (at least) away. There’s also an odd caveat: “Google could be held liable if brand owners could show that Google’s ads had damaged their trademarks.” What, exactly, does that mean? I’m guessing it’s something similar to the already troubling “dilution” standard used in the US, but it seems impossibly vague and open to interpretation (and countless lawsuits).

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Companies: google, lvmh

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Comments on “EU Court Of Justice Says Selling Ads On Trademarked Keywords Is Not Trademark Infringement”

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Griff (profile) says:

An analogy

M&S have a posh food shop in a part of town. A known UK brand.
People go there to buy food.
Someone else spots this and builds a competing food shop in the same part of town.

M&S object, saying “they came here looking for M&S and now you’re trying to lure away our customers”.

Isn’t that what L’Oreal are basically saying when someone advertises competing products next to the L’Oreal keyword ?

Rabbit80 says:

There are occasions where there are infringements that are confusing on Googles sponsored links.. For example try a search for Spybot Search and Destroy… the top sponsored links are not to the correct, free and spyware free program (hosted at but to spyware ridden scams that people have to pay for. I know many people who have been caught out by this and do not realise that they have downloaded the incorrect software! These ads are clearly (to me at least) infringing the SpyBot Search And Destroy trademark!

TheJadedTech (profile) says:

And the shift hits the fan.....

So now companies are so badly managed, as to not withstand a downturn in the economy, they turn to crying desperate pleas of ‘they are walking on our lawn!’ so that noone else can possibly sell anything that even hints at competition.

Where will it stop? With Loreal now sue Sears for having a Britnay Spears perfume sitting on the shelf next to it because ‘people may buy the OTHER perform because it’s trying to be like Loreal’? No different in the digital world. This is simple a shift in mentality and what, used to be called, an open market is.

With searches and ads being built on keywords, how does this differ than any other advertising campaign? Maybe I should start a company called “Advertising Campaign” and sue anyone who ever uses those two words in their corporate documentation?

Are people so confused that they actually believe that competition never, ever uses another company’s product to promote their own? How soon people forget their history lesson (

But companies will do anything to get more advertising for free I suppose….

Nickolass Jensen (user link) says:

Does consumers really know how sponsored links work?

Hi there. I found this post when searching twitter for comments on this case. I am a search marketer from Norway who has the same issues on my mind. One of my new clients has an established trademark wich seems to be used by competitors in Google Adwords. I was wonderering how and if we could stop that. Therefore I am following this case. Before making my own – perhaps, on behalf of my client.

Some of the articles that has been posted about the latest “opinion” – wich is not a “verdict”, mentions that, and I quote “Part of the court’s reasoning is that modern consumers are sophisticated enough to understand how ’sponsored links’ work”.
This is, in my opinion, plain rubbish! Where do they get this from. Tell them to document this point.
In some segments (especially the older segments) more than 50% of the users doesn’t now the difference between sponsored links and organic results.

I’d like to see some more good reasons than this. Otherwise this will be disputed.

mr smith (profile) says:

Where is the Justice?

In 2002, my wife and I, formed our own businesse’s. In 2006 we commenced trading with another organisation whom used our company data (Business name, address and contact numbers) enable to divert customers to themselvers. Having reported this to our local police station,we were told “they could not do anything about this”.

Is this not a criminal matter?…….Misleading the public into believing they are someone whom they’re not.

This particular organisation are bounded to the “Data Protection Act”.

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