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The European Court of Justice has issued a landmark decision in a dispute between Google and Louis Vuitton concerning Google’s service AdWords.
The dispute arised from a claim brought by Louis Vuitton before the French Court of Cassation as it found out in 2003 that: “the entry, by internet users, of terms constituting its trade marks into Google’s search engine triggered the display, under the heading ‘sponsored links’, of links to sites offering imitation versions of Vuitton’s products. It was also established that Google offered advertisers the possibility of selecting not only keywords which correspond to Vuitton’s trade marks, but also those keywords in combination with expressions indicating imitation, such as ‘imitation’ and ‘copy’”.
Given the uncertainty in relation to the role taken by the advertiser selecting the keywords and by Google itself in the provision of AdWords service, the French Court of Cassation decided to refer the case to the ECJ. Subsequently other disputes arose on the same issue and the ECJ decided to jointly rule on them.
Given the uncertainty in relation to the role taken by the advertiser selecting the keywords and by Google itself in the provision of AdWords service, the French Court of Cassation decided to refer the case to the ECJ. Subsequently other disputes arose on the same issue and the ECJ decided to jointly rule on them.
The European Court of Justice held that:
- the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service (i.e. Google AdWords), goods or services identical with those for which that mark is registered;
- an internet referencing service provider (i.e. Google) which stores, as a keyword, a sign identical with a trade mark and organises the display of advertisements on the basis of that keyword does not use that sign within the meaning of the Trade Mark Directive 89/104/EEC or of the Trade Mark Regulation (EC) No 40/94;
- the hosting providers liability exemption set out in Article 14 of E-Commerce Directive 2000/31/EC must be interpreted as applicable to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. In this context, the mere facts that: (i) the referencing service is subject to payment cannot have the effect of depriving Google of hosting provider exemption prescribed by the E-Commerce Directive and (ii) likewise, concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself to justify the view that Google has knowledge of, or control over, the data entered into its system by advertisers and stored in memory on its server.
Interestingly, the same approach referred above has been confirmed by the ECJ in a ruling issued two days later on the case Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH v Günter Guni, trekking at Reisen GmbH.
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