The Travlaw Blog

The Advocate General has today delivered an opinion in which he considers that Google has not infringed trade mark rights by allowing advertisers to buy keywords corresponding to registered trademarks. In it he said:-Because when selecting keywords, there is no product or service sold to the general public, the mere selection cannot be considered as being a use made in relation to goods or services identical or similar to those covered by the trade marks (as is required by the trademark legislation). Similarly, advertisers themselves do not commit a trade mark infringement by selecting in Adwords, keywords corresponding to trade marks.The legislation requires that there be a risk of confusion on the part of consumers as to the origin of goods or services and the mere display of relevant sites in response to keywords is not enough to establish such a risk.

He went on to say that trade mark rights cannot be construed as ‘classical property rights’ enabling the trade mark owner to exclude any other use even if it involves a trade mark which has a reputation.  

The Advocate General’s Opinion is not binding on the Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the European Court of Justice are now beginning their deliberations in applicable cases which will usually be binding on the English Courts.We have no doubt that the effects of this opinion on the travel industry will be significant and negative particularly in the light of yesterday’s publication in The Great Online Holiday Hijack 2009 - The Gloves Come Off, of the Nucleus survey of travel companies, where 80% of the brands surveyed said they were victims of brand hijacking where one online advertiser pays to intercept search enquiries for a competitor brand, often using their brand name as a keyword.  

For more information or advice, email me or charlotte@travlaw.co.uk.  

Further to the information we gave you last week about ABTA’s proposed extensions to Members’ responsibilities for consumer’s money paid for travel arrangements, ABTA have clarified their intentions a little. They have said:-‘The proposal is that any ABTA Member supplier, whether acting as principal or agent, who sells to a customer through a travel agent should be responsible for that customer’s money in the event that the travel agent fails before payment has been passed on to the supplier.’ They go on to say;‘The proposal addresses a new phenomenon seen in the market where travel agents have failed holding significant amounts of customer money, and the supplier whose product they were selling consequently refuses to fulfill the customer’s booking.’We are grateful for this clarification but are still unsure about the exact meaning of the phrase ‘accept responsibility for such monies’ in the first of ABTA’s proposals: is it intended to mean that Members’ bonding requirements will be extended; or that a non-packaging Member acting as a retail booking agent could be liable for the acts and omissions of the supplier of the arrangements? If the proposal is intended only to deal with pipeline money, we agree with ABTA when they go on to say that the proposal broadly mirrors the existing law and so will also apply to non-members; but we do think that the proposed ABTA change may have a slightly further reach than the common law would in respect of an agent selling through another agent.  We would welcome further clarification from ABTA and also your own thoughts and feedback.  Drop me an email!Sarah

As many of you will already know, ABTA have this morning announced that they are holding a General Meeting on 2nd October for members to vote on proposals to change ABTA’s Articles of the Association which will strengthen customer protection for those booking with an ABTA Member. The main changes Members will be asked to vote on are:- i)                     to ensure all ABTA Members take responsibility for money paid by their customers to companies through whom they distribute their travel services. ii)                   to change the qualifications for membership so that applicants for membership or continued membership would be subject to greater scrutiny in respect of previous directorships of failed companies, and to provide a greater restriction on the use of trading names that have been associated with failed companies.It will be interesting to see just how these changes (if they get through) will affect and be interpreted by members and the industry as a whole; and how booking conditions and other documentation may need to be amended as a result. We will of course keep you informed as things unfold.  ABTA’s press release about this is at www.abta.com/about/news/view/180 Call or email Sarah Lacy- Sarah@travlaw.co.uk for further information.

Hi Folks!!

A quick note to all our loyal blog readers, clients, and the like! Check out our new and exclusive Travlaw Travel Industry Poll, new for Autumn 2009.

http://www.travlaw.co.uk/poll.html

A new interactive feature of our website, the poll will appear monthly, featuring a question targeted specifically for the Travel Industry.

This poll assists us with providing tailored articles, features, and advice designed specifically for addressing important issues within the Travel Industry.