Days after Google was fined by a French court for selling ads linked to the terms “travel market” and “airflight market,” news emerged that Louis Vuitton launched another trademark-related action against the search engine. Apparently, other companies are planning similar moves.
The implications for selling keyword-linked paid listings? Hard to say. Excite lost a case in Germany in 2000 for linking keywords to banner ads, yet a settlement was later agreed on. Search engines certainly continue to sell terms in Germany today.
One thing’s for certain: This isn’t just Google’s problem. If the French ruling is upheld on appeal, it will impact Overture, eBay, and any other online service that operates in France and links paid listings of any type to keywords.
I have written on this topic many times but will revisit a few key issues I raised in a recent discussion of the French case on WebmasterWorld.com.
When these cases come up, some people’s immediate reaction is it’s wrong for a search engine to sell anything linked to a trademark. Some suggest search engines ought to check to see if a word’s registered as a trademark. If it is, it shouldn’t be sold.
Problem is, how would they check? In the U.S., trademarks needn’t be registered. Theoretically, means search engines couldn’t sell any word without this fear they may accidentally violate a trademark and be sued. Consider as well ordinary words are often trademarks. In France, “Egg” is the name of a bank, “Orange” is a cell phone company. Do you ban anyone from bidding on these words?
What do you do when two or more people have a trademark on the same word, such as Apple Computer and Apple Corp., the Beatles’ record label. Who trumps whom?
What do you do when someone wants to sell a product for which the words used to describe it are a trademark? Take used cell phones. It’s not illegal to sell them. But are sellers prevented from using “Nokia”? If you can’t bid on “Nokia” as a keyword, can you bid on “used Nokia cell phones”?
Does presentation factor into it? In the Vuitton case, a search for “vuitton” at Google France shows the company’s Web site as the very first listing. It’s hard to argue Google somehow prevents users from finding the site simply because it also carries ads linked to the Vuitton name.
Finding a Balance
Trademark owners do have some serious and legitimate concerns about how words that are also their trademarks are sold. But it’s a mistake to assume bidding on words that may also be trademarks is an open-and-shut case for trademark owners.
Maybe these cases will clear up the issues in France. In the U.S., the Body Solutions case is the most serious I’m aware of. That case may not move forward due to the company’s legal and financial problems.
Doubtless some other case will arise.
Meantime, more information about trademark issues can be found in the Advertising & Listings section of the Search Engines and Legal Issues page I maintain.
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