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.

Note:
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.

More Google trademarks issues

“Google has not committed a trademark infringement by allowing advertisers to select, in AdWords, keywords corresponding to trademarks.”

Those words from the Advocate General at the European Court of Justice is just another round in the ongoing legal battle between LVMH and Google. So although the final decision is not due until later in 2010, this does position the search giant favourably. It therefore looks to reverse the French courts' decision in 2005 where the Louis Vuitton owner successfully claimied Google had acted illegally and allowed competitor companies (or those that make fake copies) to buy keywords such as "Louis Vuitton" to be displayed for Pay Per Click advertising.

Google relaxing trademarks now?

Ok, its not usual for me to keep on about a subject for too long (especially when there's so much out there to blog about), but following on from last weeks postings [Monday and Wednesday]about Google and trademarks, there have been further developments in this area....

Last week, it announced that will ease its restrictions on trademarked terms in adverts in Google. Now brands can both positively and negatively mention each other in their PPC activity. Some see this as an opportunity to communicate their exact product offerings, others just see it as Google trying to squeeze more revenue out of their search marketing service.

Either way this is yet another blow for those companies who are trying to prevent their competitors marketing to their customers on the popular search engine. Where previously some brands avoided the crowded (and potentially monopolistic) search engine, they now may not have any choice but to out-bid others to protect their own trademarks and revenue.

Google PPC trademark and the Class Action Lawsuit

Sometimes I write about relevant things, usually a little time after they happen (this tends to be after I've either used it, read about it or listened to a podcast that mentions it), but rarely do I write about somehting and then the following day or so something significant happens... however, following on from my posting on Monday...

...there is an article in today's Register by online legal firm out-law.com. This gives details about a sales software company called Firepond who have sued Google in a Texan court, because the Google AdWords system apparently infringes their trade marks.

"Google has improperly infringed [Firepond's] 'Firepond' Marks by selling, for example, [its] trademark 'Firepond' to [its] competitors as a keyword so that when an Internet User searches for 'Firepond' on...Google's Internet search engine, the competitor's advertisement hyperlink will appear at the very top and/or on the right side of the first page of search results…thereby confusing Internet Users and diverting a percentage of such Users from [Firepond] and enjoying and benefitting from all the goodwill and 'buyer's momentum' associated with [its] valuable trademark,"

However, by hopefully teaming up with other companies who are also upset by this activity, Firepond hopes to create a Class Action which will prevent Google from profiting from competitive trademark keyword buying.

This will certainly be an interesting case to watch, especially I more companies join in.
Further information is available at outlaw.com