Tuesday, March 23, 2010

Google and brands - keyword trademarks are allowed

So, its official. Google have won the right for anyone to use brand names in their search placement advertising. (See Google's official blog posting)

Today the European Court of Justice has ended the long-running legal battle between Google and Louis Vuitton, ruling that the Internet's biggest search engine can continue to show adverts for brand names in search advertising keywords that are not put there by the brand owners or their agents (usually the case when the product is a fake and the counterfeiter is passing off the product as real). So following on from my previous posts, this overturns the 2005 decision of the French courts who rules in favour of LVMH.

So will the Brandjacking now commence?

Oh yes! .... with the only saving graces for brands being that it still constitutes an infringement of the trademark rights if the advert causes confusion over the origin of the goods and furthermore the ECJ stated:

companies that use trademarked brand keywords to push sales must be more
transparent about who the seller is
The last remaining ruling now is whether Google is responsible for the content of ads stored on their servers, apparently a matter that should be left to the French courts. Therefore should Google be found to have a "neutral" role in just "technical, automatic and passive pointing to a lack of knowledge or control of data" then the matter will be well and truly resolved.

My thoughts are that as the system for delivering this is automated, we'll see Google win this as well. But experience shows you can never really predict what the French courts will decide.

So what does this mean for brands?

Well it means that officially brands do not own the terms that people search for them on the web and cannot stop others (including the competition or counterfeiters) bidding on them - consequently this raises the amount that has to be spent getting top billing on the right hand side of search results - if that is the brand's policy.

Its worth mentioning that Google already has very clear policies to prevent the advertising of counterfeit goods in its pay-per-click advertising system, but his ruling has now confirmed the position.

However it also potentially means that brands now have to police their own brand search terms to ensure the fake makers aren't slipping the odd advert in now and then.