ADWORDS AND TRADEMARK INFRINGEMENT II
French judge penalizes Google for trademark infringement for AdWords.
Google offers everyone the opportunity to advertise on the Internet using its search engine. When an “AdWord” is typed into the search engine, an advertisement from the advertising company appears in a prominent manner above or next to the search results.
The advertiser is free to choose which words are used as AdWords. It thus occurs that a company uses the trademark or trade name of a competitor as an AdWord. It’s likely that this use of a trademark is a trademark infringement. There is not yet a clear rule in Dutch case law as to whether this type of advertisement is allowed.
Outside the Netherlands the question has also arisen as to whether trademarks can be used as AdWords. According to Le Figaro, the Superior Court of Paris (tribunal de grande instance) recently judged that Google must pay € 200,000 to the company Voyageurs du Monde, € 150,000 to Terres d’Aventure, and € 60,000 in legal costs.
When the trademarks ‘voyaguer du monde’ and ‘terres aventure’ were entered into the Google search engine, the results returned with advertisements for the competitors of Voyageurs du Monde and Terres d’Aventure. According to the French court, this resulted in (marginal) damage as the clients of these companies could have been misdirected to other websites.
Google doesn’t agree with the decision and is appealing.
The French judiciary has considered this issue on other occasions. Various French judges have decided against Google on the basis of complaints from Viaticum / Luteciel , Louis Vuitton Malletier, and Le Meridien Hotels. Google has, however, appealed or indicated its intention to appeal against these decisions. The final word over this subject is not yet written.
The use of trademarks as AdWords has also become a hot issue for other judges in Europe. The Supreme Court of the Netherlands (the Hoge Raad) (following in the footsteps of the German Bundesgerichtshof and the French Cour de Cassation) has presented questions to the European Court on this topic. We must now await the decision of the European Court.
P.S.: Do you have questions regarding your (future) trademark? We recommend having your trademark registered. For more information, contact mr. Laurens Ramondt.