Trademarks are not absolute, victorious Google says

23 Mar 2010

The European Court of Justice today confirmed that search giant Google has not infringed trademark law by allowing advertisers to bid for keywords corresponding to their competitors’ trademarks.

The company has been awaiting a series of decisions by the European Court of Justice that explores the extent to which trademark rights can be used to restrict information available to users in online advertising.

“The question before the court was whether advertisers should be allowed to choose keywords freely when reaching out to users on the internet,” explained Dr Harjinder S Obhi, senior litigation counsel, EMEA.

“In other words, if advertisers are allowed to show advertisements when another company’s brand name is entered as a search query.”

Trademarks within culture

Obhi argued that trademarks are part of our daily life and culture, helping us to identify the products and services we may be looking for.

“They are key for companies to market and advertise their products and services. But trademark rights are not absolute.

“We believe that user interest is best served by maximising the choice of keywords, ensuring relevant and informative advertising for a wide variety of different contexts. For instance, if a user is searching for information about a particular car, he or she will want more than just that car’s website. They might be looking for different dealers that sell that car, second-hand cars, reviews about the car or looking for information about other cars in the same category.

“And, contrary to what some are intimating, this case is not about us arguing for a right to advertise counterfeit goods. We have strict policies that forbid the advertising of counterfeit goods; it’s a bad user experience. We work collaboratively with brand owners to better identify and deal with counterfeiters.

Trademarks and keywords

Obhi said some companies want to limit choice for users by extending trademark law to encompass the use of keywords in online advertising.

“Ultimately they want to be able to exercise greater control over the information available to users by preventing other companies from advertising when a user enters their trademark as a search query. In other words, controlling and restricting the amount of information that users may see in response to their searches.

“Today, the court confirmed that Google has not infringed trademark law by allowing advertisers to bid for keywords corresponding to their competitors’ trademarks. It also confirmed that European law that protects internet hosting services applies to Google’s AdWords advertising system.

“This is important because it is a fundamental principle behind the free flow of information over the internet,” Obhi said.

Obhi explained that Google’s guiding principle has always been that advertising should benefit users, and our aim is to ensure that ads are relevant and useful.

“We will study the decision as we move forward in order to make sure that we continue to deliver advertising that is perceived as both valuable and relevant by our users,” Obhi said.

By John Kennedy

John Kennedy is a journalist who served as editor of Silicon Republic for 17 years