Monday, October 19, 2009

Google adwords v LVM registered trademarks

Google v. LVM – adwords appeal case in France.

Google adwords has appealed recently against court decisions against it concerning adwords and registered trademarks in France. LVM has won the cases favouring its registered trademarks in the lower courts in France against Google to date. Currently, the highest court in France is considering the issues in the case. The issues in this case include the following: - Google adwords are used by competitors to bring customers to its goods/services. Some competitors use another party’s registered trade mark in the Google adwords campaign. When the adword is clicked, the competitor pays a fee and Google receives payments for the use of the adword. A key issue is whether the use of adwords like Louis Vuitton by a competitor abuse the rights held by the owner of a registered trade mark. A registered trademark conveys a property right to its owner. The owner can control the users and uses of the registered trademark. Unauthorised use is preventable by the owner of a registered trademarks. The ownership of a registered trademark carries exclusive rights. This means nobody else can use the mark without permission. The case challenges the rights of property owners. It also challenges the fundamental rights embodied in registered trademarks. Can Louis Vuitton prevent a competitor from using its registered trademarks in Google adwords campaigns? Can Google adwords limit the excusive rights held by the owner of a registered trademark? Are there commercial aspects to the use of Google adwords involving registered trademarks? Who receives payments? Who pays? Does Google adwords involve “use” of a registered trademark in commerce? Because the goods per se may not be traded commercially in the advertisement linkage process, the question is whether the registered trade mark is being “used” commercially. A registered trademark conveys exclusive rights to its use under the trade marks legislation. So can another party include the registered trademark of another party in its advertisements campaigns? If the use of the registered trademark leads to the consumer being misinformed or misled, then is the use of the Google adword an infringement of the registered trade mark? Search engines use words to search for sites. In the search engine format, one of the commercial links is made when a party pays to be listed under the search engines. So there may be a commercial feature of the use of search engines. However, under French law there is an exemption from liability for search engines in a social sense of providing a social service, where the service provider is unaware of any abuse of a registered trade mark. Does Google adwords fit the terms for exemption as applied to search engines under French law? Is there a limit to the exclusivity obtained when registered trademarks are used, even by competitors? Is Google adwords a commercial activity in relation to the laws affecting registered trademarks? Does Louis Vutton lose custom to competitors as a result of the use by the competitors of its registered trademarks? The issues in this case are very important for the owners of registered trademarks.

No comments:

Post a Comment