Google Vs. Louis Vuitton case – A trademark battle with wide consequenses – If Google wins

I put a small comment on culture-buzz.com before writing this post.

You can find more articles on this case on the Guardian , a blogpost at blogstorm and earlier on it has been mentioned at Searchengine Watchreceptional.com, NY times , and at corante.com..

This is just a few examples of online articles covering the Google Vs. Louis Vuitton case. I presume that most of the readers of this post are in someway aware of this case. If not – I recommend that you take a glimpse on some of the above articles, and then get back here to comment.

Some of the articles that has been posted about the latest «opinion» – wich is not a «verdict» as some would like to claim, mentions that part of the court’s reasoning is, and I quote:

that modern consumers are sophisticated enough to understand how ’sponsored links’ work.

I’d like to dispute this particular quote and try to refine what’s actually the case here.

It seems rather odd for me to see how few journalists and marketing people who has actually commented this case online, and who have started putting questions. Are you afraid of biting the hand that feeds you, you online search marketers?

Do you just don’t know, or do you just don’t care?

Either way this is a kind of negligence which is a bit scary, if you should ask me. Speak out! I’d like to hear some of the search marketers out there – are you in or are you out. Are you or against this opinion, which is still not a verdict?

In this case I really think you can actually make your voice heard and sound your points, can’t you? Or have you lost faith in your own ability to move Google you way. Instead you flow – in the Google slipstream?

I am no Anti-Google spokesman at all, Google feeds me and nurishes me all the time, but when it comes to this case I really have digestion trouble. We want Google to be good – right?

Therefore we, as a branch, have to decide whether there should be zero-tolerance when it comes to buying keywords which are trademarked brands – or not.
We know why Google fights this case – it’s because of the moneymaking potential. But do we really want this. Isn’t this only going to start a bidding-spiral on the most popular trademarks. Which again will mean even more money spent on google advertising – and less ROI? With Google as the winner in an economic perspective?
Or am I making a scene here?

louis vuitton vs google
louis vuitton vs google

Have you as a search marketer or usability expert got any research studies that can enlighten us, please put it in the comments.

 OPINION OF ADVOCATE GENERAL POIARES MADURO
OPINION OF ADVOCATE GENERAL POIARES MADURO

To make this easy for you I will quote the the part of the opinon which relates to this:

iii) Whether the use affects or is liable to affect the essential function of the trade mark, by reason of a likelihood of confusion on the part of the public

82. As was mentioned above, this condition involves assessing whether there is a risk of confusion by consumers as to the origin of the goods or services. (32)

83. It is useful to recall that the Court is being asked only about the use of keywords which correspond to trade marks; it is not being asked about the use of the trade marks in ads, or in the products sold via the sites advertised. Either of those last?mentioned uses by third parties may lead to confusion and constitute, in itself, an infringement. However, that would only affect the use of keywords by Google if a ‘contributory infringement’ doctrine were accepted: Google’s use would constitute an infringement solely on the basis of its contribution to an infringement by a third party. As indicated above, this possibility will be analysed separately. For the time being, I shall concentrate on the possible risk of confusion stemming from the use of the keywords for the display of ads, regardless of the character of those ads and the sites involved.

84. As has been pointed out, the display of ads establishes a link between the keywords corresponding to the trade mark and the sites advertised. The question is whether that link may lead consumers to confuse the origin of the goods or services offered on those sites – even before the content of those sites is taken into account. In order for such a risk to exist, consumers would have to assume, from the mere fact that certain sites are associated with such keywords, that those sites originate ‘from the same undertaking [as the trade mark proprietors] or, as the case may be, from economically linked undertakings’. (33)

85. Such a risk of confusion cannot be presumed; it must be positively established. (34) The question whether there is a risk of confusion is usually left to the referring court, as it may involve complex factual assessments. (35) None the less, the parties have urged the Court to determine that risk, namely whether internet users ‘confuse’ ads with natural results. (36) Even if the Court were in a position to make this particular factual assessment, I believe it would serve no purpose – indeed, the question itself is misleading.

86. By comparing ads with natural results, the parties assume that natural results are a proxy for ‘true’ results – that is to say, that they originate from the trade mark proprietors themselves. But they do not. Like the ads displayed, natural results are just information that Google, on the basis of certain criteria, displays in response to the keywords. Many of the sites displayed do not in fact correspond to the sites of the trade mark proprietors.

87. The parties are influenced by the belief to which I referred at the outset – that if an internet user seeks something in Google’s search engine, the internet user will find it. However, that is not a blind belief; internet users are aware that they will have to sift through the natural results of their searches, which often reach large numbers. They may expect that some of those natural results will correspond to the site of the trade mark proprietor (or an economically linked undertaking), but they will certainly not believe this of all natural results. Moreover, sometimes they may not even be looking for the site of the trade mark proprietor, but for other sites related to the goods or services sold under the trade mark: for example, they might not be interested in purchasing the trade mark proprietor’s goods but only in having access to sites reviewing those goods.

88. Google’s search engine provides help in sifting through natural results by ranking them according to their relevance to the keywords used. There may be an expectation on the part of internet users, based on their assessment of the quality of Google’s search engine, that the more relevant results will include the site of the trade mark proprietor or whatever site they are looking for. However, this is nothing more than an expectation. Confirmation only comes when the site’s link appears, its description is read, and the link is clicked on. Often the expectation will be disappointed, and internet users will go back and try out the next relevant result.

89. Google’s search engine is no more than a tool: the link that it establishes between keywords corresponding to trade marks and natural results, even the more relevant sites, is not enough to lead to confusion. Internet users only decide on the origin of the goods or services offered on the sites by reading their description and, ultimately, by leaving Google and entering those sites.

90. Internet users process ads in the same way as they process natural results. By using AdWords, advertisers are in fact attempting to make their ads benefit from the same expectation of being relevant to the search – that is why they are displayed alongside the more relevant natural results. However, even assuming that the internet users are searching for the site of the trade mark proprietor, there is no risk of confusion if they are also presented with ads.

91. As with natural results, internet users will only make an assessment as to the origin of the goods or services advertised on the basis of the content of the ad and by visiting the advertised sites; no assessment will be based solely on the fact that the ads are displayed in response to keywords corresponding to trade marks. The risk of confusion lies in the ad and in the advertised sites, but, as has already been pointed out, the Court is not being asked about such uses by third parties: it is being asked only about the use by Google of keywords which correspond to trade marks.

92. It must be concluded, therefore, that neither the display of ads nor the display of natural results in response to keywords which correspond to trade marks leads to a risk of confusion as to the origin of goods and services. Accordingly, neither AdWords nor Google’s search engine affects or is in danger of affecting the essential function of the trade mark.

You can read the whole
OPINION OF ADVOCATE GENERAL POIARES MADURO delivered on 22 September 2009 (1):
Google France
Google Inc.
v
Louis Vuitton Malletier

This is, for what I know, and what different search engine usability studies also show: A not very well based conclusion.
In some segments more than 50% of the users doesn’t know the difference between sponsored links and organic results.
The final verdict will have a huge impact on any online marketing practice worlwide and is changing the way we relate to ethics in the marketing business, if this opinion stands.

If there is anyone who would like to provide us with some details about how users really understand the difference between sponsored links and natural/organic results – then you are most welcome to – comment this post.
Isn’t there any journalist anywhere who is going to digg up som more background info on this or is this only going to be a discussion for tech savvy people?

On march the 23. this case actually got a verdict. I wrote a new piece about it in Norwegian: Google vs Vuitton /LMVH – Google vant frem i viktig rettsak.

 

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