Adwords Policy NO TradeMarks infringement?

Advocate General considers that Google’s AdWords policy has not infringed trade marks
source: law-now.com

Advocate General Poiares Maduro issued his long-awaited opinion on 22 September 2009 in relation to the link between sponsored search engine keywords and trade mark infringement. He decided in favour of Google’s controversial AdWords system, which permits advertisers to purchase competitors’ trade marks as keywords in order to trigger sponsored links in search results.

The Advocate General’s Opinion is aimed at ensuring, (in his own words), “that the legitimate purposes of preventing certain trade mark infringements do not lead to the prohibition of all trade mark use in the context of cyberspace”.

The key findings are as follows:

1. The offer and selection of keywords which result in a link being displayed does not of itself constitute an act of trade mark infringement.

2. The Trade Mark Directive does not enable the proprietors to prevent registration or use of keywords in generating links (although the actual advertisements displayed could do).

3. It makes no difference if a mark is a mark with a reputation – the extended form of protection is not of assistance.

4. The provider of a paid keyword service cannot be considered to be an information society service in the context of the E-Commerce Directive.

Importantly, the Opinion does not consider whether the text of the advertisements displayed from keywords could amount to trade mark infringement, only the process of registering such keywords and causing such advertisements to be displayed from search enquiries.

The Advocate General also considered a more general concept, as to whether Google might be liable for some form of contributory infringement because the subsequent use of keywords could result in infringement. The Advocate General was clear that the act of contributing to infringement by a third party, whether actual or potential, would not be an infringement in itself.

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source: the east african -sept 21/the citizen