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.