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Monday, January 24, 2005

French Court Takes Opposite Tack on Trademark

(via Techdirt) Much like replacing a hard surface with clay courts in a tennis match, the search advertising trademark issue takes on a different spin when moved to France. A court has ruled that Google can't allow ads to be triggered by searches that include trademarked terms.

Wrong, silly, and illogical.

This week I found myself on a brief holiday. In spite of the fact that I was staying at one hotel, proprietors of the other hotels were doing everything they could to induce me to try them next time around. While strolling in an underground mall, employees of one establishment called us over to invite us to a promotional seminar. On the beach, timeshare hawkers did their best to divert us from our quiet walk. And would you believe this one: these rival hotels actually occupy ground that is RIGHT NEXT TO the hotel I stayed at, and they have BIG LOGOS. Drivers of airport shuttles call out the names of the various hotels as they drive by them. How is a poor trademark holder supposed to handle all this competition?

A page of search results is no different. A bunch of links is displayed in a way that a search engine (and its advertisers) deem relevant to the user. Link X is near Link Y. That doesn't mean an advertiser is "buying trademarked keywords" or that Google is selling them... any more than the presence of a Wyndham next to a Radisson, or the publisher of a guide to all the hotels in the area, means that the Wyndham is "buying the Radisson's land."

The Wyndham is on the Wyndham's ground. The Radisson is on the Radisson's ground. And search engine results pages and the ad space they sell belong to Google. Surely the French courts don't believe that search engines should just be handed over to large companies to do with as they please?

The sad irony is that the Google ads are the opposite of the bothersome timeshare salesman on the beach. If I click on the ad, I may be exposed to any number of consequences. But until I do, that ad just sits there quietly minding its own business. The mere presence of the ad does not in and of itself constitute a violation of trademark law. At least that's what the California court said. Looks like we're going to see a few more of these cases before we're through.

Posted by Andrew Goodman




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