AdWords are bAdWords
23 Mar
Hot off the press, the ECJ have ruled that the use of other people’s trade marks in sponsored advertising (such as Google AdWords) DOES consitute trade mark infringement. The only way out of it for the advertiser is for them to show that consumers would not think that the advert led people to believe there was any connection to the trade mark owner. If it is not easy to tell, then it is still an infringement.
Google themselves are found not to be using the trade marks. This is important for them, as most brand owners are targetting them as they cannot spare the time to police Google’s searches. It was not ALL good news, however, as the court found that Google were more than a “mere host” on their activities, opening up the possibility of action under different grounds. It also puts the focus on eBay and YouTube, who also have activities and run their services as being more than mere “repositories”.
Watch out for a new AdWords policy.. I suspect that they will say that if they get a complaint from a brand owner then the ad comes down unless you show that your use is ok. The court also left a further issue open, which is whether it is ok to use a trade mark if it is clear that there is no connection, but the use suggests that you goods or services are comparable in such a way that you piggyback on the trade mark – I think they will say it is an infringement to do so.
