Keyword advertising vs. trade mark infringement

Advocate General (AG) Poiares Madura has provided a detailed opinion concerning Google's keyword advertising system, following references to the ECJ from France in three sets of proceedings brought by trade mark owners against Google. The AG considered (among other things) that Google, by displaying advertisements in response to keywords corresponding to trade marks, established a link between those keywords and the sites advertised, which sold goods or services. However, such a link did not constitute trade mark infringement as the mere display of relevant sites in response to key words was not enough to lead to confusion. The AG's opinion provides some much-needed clarification of trade mark law in relation to keyword advertising, although it remains to be seen whether it will be followed by the ECJ when it gives its decision. Brand owners will doubtless be disappointed with the opinion, but the references only concerned the use of keywords which corresponded to trade marks, not the use of the trade marks in advertisements, or in the products sold via the sites advertised. The AG also considered that the liability exemption for hosts in Article 14 of the E-Commerce Directive (2000/31/EC) should not apply to the content featured in Google's AdWords. Case: Google France and Google Inc. v Louis Vuitton Malletier, Google France v Viaticum Luteciel, and Google France v CNRRH and others, Joined Cases C???236/08, C???237/08 and C???238/08, 22 September 2009.

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