Is Google Winning the Battle in Key Words Advertising Litigation?

Google may have won the battle in Europe in regards to allowing advertisers to purchase trademarks as key words in their Google Ads program. Recently, the highest court in France found Google not liable for trademark infringement in the Google vs. LVMH case and referred the case back to the France Court of Appeals.

Previously, the lower court ruled Google was liable for trademark infringement for this practice. I previously wrote about this practice here. Basically Google allows a competitor of a company with a well established trademark like "Catepillar", to purchase the trademarked "Catepillar" as a key word. When a search is executed for the competitor company on Google, the competitor's link may show up before "Catepillar's" own link. Doesn't sound fair, does it? Many companies have either complained or sued Google for this practice and the courts have been split. In the U.S. one circuit agrees it is trademark infringement, while another circuit disagrees. However, in Europe, Google seemed to be having a harder time defending this practice as the courts have pretty much sided with the trademark owners.

The French lower court concluded a "likliehood of confusion" existed when consumers searched for the rightful trademark owner's products and instead a search produced a competitor's or imitator's products. I previously covered this ruling here. However, the higher court disagreed.

Where does this leave Google? Well Google feels like this decision was in their favor and believes and I quote "All cases which get ruled upon by the French Supreme Court go back to the French Court of Appeal as matter of course," Ben Novick, a Google spokesman said. Google further argues, "The French Court of Appeal will need to apply the law as laid down by the Cour de Cassation today. The Cour de Cassation has ruled that Google is not guilty of trade mark infringement, unfair competition or misleading advertising. All else is 'ifs' and 'buts."

However, LVMH feels differently. They welcome the case being remanded to the Court of Appeals and believes the French Court of Appeals "will enable the Paris Court of Appeals to rule on Google's civil liability when using trademarks without the trademark owner's authorization. The Court of Appeals will determine any potential wrongdoing committed by Google to the detriment of Louis Vuitton"

It will be an interesting outcome.