ECJ Finds Google Adwords Do Not Infringe Trade Marks (But Advertising Links Could)

The European Court of Justice ("ECJ") handed down its long-awaited judgment in relation to the question of whether or not Google's 'AdWords' system, which allows the sale of keywords to trigger sponsored advertising links on its search engine, could amount to trade mark infringement.

The ECJ agreed with the Advocate General in finding that the purchase and sale of keywords which were third party trade marks was not, of itself, trade mark infringement, so Google was not liable for these aspects. However, if the display of the sponsored advertising link could mislead an 'average internet user' as to the origins of the goods/services, it may result in an infringement by the advertiser.

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The European Court of Justice ("ECJ") handed down its long-awaited judgment in relation to the question of whether or not Google's 'AdWords' system, which allows the sale of keywords to trigger sponsored advertising links on its search engine, could amount to trade mark infringement.

The ECJ agreed with the Advocate General in finding that the purchase and sale of keywords which were third party trade marks was not, of itself, trade mark infringement, so Google was not liable for these aspects. However, if the display of the sponsored advertising link could mislead an 'average internet user' as to the origins of the goods/services, it may result in an infringement by the advertiser.

Background

The ECJ's ruling is in response to three separate references from the French Cour de Cassation (Google Inc. v Louis Vuitton Malletier, Google France v Viaticum Luteciel and Google v CNHRR (C-236/08, C-237/08,C-238/08), which were referred for a preliminary hearing in May 2008. All three cases related to Google's potential liability for the sale of the keywords that corresponded to the registered trade marks of Louis Vuitton Malletier ("Louis Vuitton" and "LV"), Viaticum ("Bourse des Vols", "Bourse des Voyages" and "BDV") and M. Thonet ("Eurochallenges"). Google had sold keywords comprising these trade marks to third parties, which, when searched for on Google, triggered the display of sponsored links on the website. The sponsored links were to websites offering competing goods/services, in Viaticum and CNHRR to those of direct competitors, and in Louis Vuitton, to a site offering counterfeit Louis Vuitton products.

The French Court of Cassation referred various questions to the ECJ, which related to the liability...