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The Lower Court of Nanterre required Google France to pay 70,000 euros (about $81,400) to two companies that owned the rights to certain words. Google France sold the use of these words to advertisers through its AdWords program. AdWords permits individuals and companies to place advertisements on the Google home page that appear when a specific search term is used.
This case sort of shifts the burden from the advertiser to Google to investigate trademark disputes, doesn't it? I wonder if they're at all prepared to deal with that, or if the problem will work itself out.
These seem like pretty general words to have trademarked. What if Expedia trademarked "Air Travel" or MS trademarked "Windows". Would everyone have to shop for "transparent plates of silica"?
Don't expect any logic from the French courts :)
Sometimes it seems that in the legal preofession the law goesright out the window...
One way around this would be for Google to challenge the registration itself. Another to go the same legal route as they have before - i.e. freedom of speech.
But perhaps more interestingly is how this thing works out with Google's own terms of service, which state that you cannot advertise for somebody else's trade mark unless you have a business relationship with that party. At least, that is what they said when I signed up in early 2002. Has that been discontinued in the wake of expanded broad matches?
So - you can happily buy eg your competitors brand names - and use those searches to trigger your adverts.
When the competitor wakes up and realises whats happening, and calls Google - Google advises that you are required to send a letter, on company letter head (ie snail mail) - signed by an authorised officer of the company - outlining the situation in full to Google. If your 'case' appears to have merit - the contested trademark gets added onto a 'blocked words' list, so it can't be used as a trigger word.
This French case appears to set the onus of checking trademarks back on Google - not on the aggrieved trademark holder. Which is potentially a huge burden on Google - and will potentially delay 'approval' of adwords campaigns by days/ weeks. Just like it does currently with 'adult' trigger words like betting - as some words are not available as trigger words in eg Germany & Australia due to Government Legislation - so Google is forced to check them.
The question now is: is Google the only one punished/punishable or teh advertiser is also punishable under law?
If yes, I come back to my question, how does one check if he can use that particular keyword or not?
This makes it exceptionally difficult for Google (Overture, ESpotting etc...)
[edited by: Shak at 10:22 pm (utc) on Oct. 20, 2003]
I'm not sure that I follow you there - why would it be illegal to use a trade-marked term as a Google keyword? Seems to me that companies (here in the UK) would regularly use the names of competitors and their trademarks in newspapar/magazine advertising.
A classic example of this would be UK banks, who will often compare their interest rates with those of their competitors. These ads are printed and are not seen as being "illegal" - not sure why the rules should be interpreted any differently on the internet.
If my ad reads: "buy widgets cheaper than x" and x (a trade-marked term) is sold at a higher price by the manufacturer of x, then I don't see that my ad should cause a problem.
A few years back some folks were using the meta keyword tags for much the same purpose in that a search on their competitors ™ brought back results that prominently included their own web pages. That practice has already been judged in the courts of the US and several European countries as trademark dilution and an infringement on the owner’s intellectual property. I don't know whether the IP issue has also been tested in the courts for pay per click keywords but assume the outcome would be the same.
Google’s dilemma is that their broadmatch technology is producing the same problem results even though the advertiser has not used an offending ™ in the keyword campaign. According to the sources quoted in the earlier postings, that’s what the French judgment was about.
Now I can see trademarking your company name, and anything you invent, but being able to trademark words (that you certainly didn't invent) like 'body solutions' or 'market travel' is totally ridiculous.
What's to stop Billy Gates from going out and trademarking every phrase he can find regarding computing? Then no one can use them any more.
IMHO, it's high time to stop giving trademarks for mere words.