Share This Article
The Advocate General of the European Court of Justice has issued today its opinion on the Google v. Louis Vuitton case which related to the possibility to consider the use by Google, in its advertising system “AdWords” of a keyword corresponding to a third party’s registered trade mark as an infringement of that trade mark.
The Advocate General held that:
- the selection by AdWords customers of a keyword reproducing or imitating a trade mark registered by a third party and covering identical or similar goods and the displaying of ads in response to keywords reproducing or imitating registered trade marks without the trade mark owner’s authorisation does not give rise to a trade mark infringement and therefore a trade mark owner cannot object to such use;
- Google in the provision of AdWords services cannot be qualified as an hosting provider enjoying the liability exemption set forth in Article 14 of the E-Commerce Directive 2000/31/EC since AdWords is “no longer a neutral information vehicle” because “Google has a direct interest in Internet users clicking on the ads’ links“. On the contrary, Google’s search engine may fall under the liability exemption provide in respect of “caching” in Article 13 of the E-Commerce Directive.
This is a very good opinion for Google. However, I do not fully share the view of the Advocate General in relation to the impossibility to apply the hosting liability exemption with reference to AdWords service. I believe that it is not relevant the circumstance that Google gains profit from the AdWords service since otherwise the liability exemption would not be applicable to any other hosting provider which requires the payment of fee to its users. Indeed, as far as Google does not exercise any control on the contents of the advertising claims and the selected keywords I think that the liability exemption should be applicable as they would only store contents provided by AdWords customers.
Finally, please bear in mind that the opionion of the Advocate General is not binding for the European Court of Justice that might adopt a different approach.
(Visited 1 times, 1 visits today)
