The Times Online reports today the announcement by internet search engine Google that it will extend to 194 countries the scheme which lets businesses use their rivals' trade marks for online advertising. Accordingly, from Thursday 4 June Google will no longer consider requests from brand owners to take down “sponsored links” that use their trade marks to sell rival or even counterfeit goods. On this basis, the best they can hope to do is to buy back the right to use their own trade marks at a higher price than their competitors are prepared to pay. According to Google, "As of June 4, Google will no longer review keyword lists for monitored trademarks in these [194] countries. This will bring these countries into line with the US, Canada, UK and Ireland who already employ this policy" [it's not actually the countries that 'already employ this policy' -- it's Google].This move is ahead of the pending reference by the French Cour de Cassation to the European Court of Justice of a series of questions concerning this practice in a dispute involving Louis Vuitton. The Advocate General's Opinion in this reference, expedited on account of its extreme importance, is due to be published, coincidentally, on 4 June. The questions referred are as follows:
"Must Article 5(1)(a) and (b) of ... Council Directive 89/104... and Article 9(1)(a) and (b) of Council Regulation ... 40/94 ... be interpreted as meaning that a provider of a paid referencing service who makes available to advertisers keywords reproducing or imitating registered trade marks and arranges by the referencing agreement to create and favourably display, on the basis of those keywords, advertising links to sites offering infringing goods is using those trade marks in a manner which their proprietor is entitled to prevent?
In the event that the trade marks have a reputation, may the proprietor oppose such use under Article 5(2) of the directive and Article 9(1)(c) of the regulation?
In the event that such use does not constitute a use which may be prevented by the trade mark proprietor under the directive or the regulation, may the provider of the paid referencing service be regarded as providing an information society service consisting of the storage of information provided by the recipient of the service, within the meaning of Article 14 of Directive 2000/31 ... so that that provider cannot incur liability until it has been notified by the trade mark proprietor of the unlawful use of the sign by the advertiser?"
Merpel is refraining from making any comment since she does not wish to influence unduly the thoughts of the Advocate General, though she's willing to bet a pint of best cat's beer that, whatever the law really means, the ECJ won't find it easy to let Google carry on making money out of this practice for as long as France is a Member State of the European Union. The IPKat's just sulking because no-one has paid Google for the use of his name yet ...
Hat-tip to Ross M. Kay (Laudens) for the lead.
