Days after Google was fined by a French court for selling ads linked to the terms "travel market" and "airflight market," news emerged that Louis Vuitton launched its own trademark-related action against Google. Apparently, other companies are planning similar moves.
Implications for the ability to sell keyword-linked paid listings? Hard to say. Excite lost a case in Germany in 2000 for linking keywords to banner ads, yet there was later a settlement and search engines certainly continue to sell terms there today.
One thing is for certain. This isn't just a Google problem. If the French ruling is upheld on appeal, it will impact Overture, eBay and any other type of service where paid listings of any type is linked to keywords, at least in that country.
I've written before on this topic many times, but I'll revisit a few key issues that I raised in a recent discussion of the French case at WebmasterWorld.com.
When these cases come up, some people immediately think that its wrong for a search engine to sell anything linked to a trademark. A search engine ought to check to see if a word is registered as a trademark, it's sometimes suggested. If so, then it shouldn't be sold.
The problem is, how do you check? In the US, trademarks needn't be registered. Potentially, this means search engines couldn't sell any word without fear that they might accidentally violate someone's trademark and get sued.
Consider also that ordinary words can be trademarks. In France, "Egg" is the name of a bank and "Orange" is a cell phone company. Do you ban anyone from bidding on these words?
What do you do when two or more people have a trademark on the same word, such as Apple Computers and Apple Corp, the Beatles' record label. Who trumps whom?
What do you do when someone wants to sell a product where the words used to describe it are a trademark. For example, let's say you sell used cell phones. It's not illegal to do this. But are you prevented from using the word "Nokia?" Perhaps you can't bid on "Nokia," but can you bid on "used Nokia cell phones?"
Does presentation factor into it? In the Vuitton case, a search for vuitton at Google France shows the company's web site as the very first listing. It's hard to argue that Google is somehow preventing users from finding the site because it also carries ads linked to the Vuitton name.
Finding A Balance
Trademark owners have some serious and legitimate concerns about how words that are also their trademarks are sold, but it's a mistake to assume that bidding on words that may also be trademarks is a clear cut case on the trademark holder's side.
Maybe these cases will clear up the issues in France. As for the US, the Body Solutions case is the most serious I know of. However, that case might not move forward given the company's own legal and financial problems.
If not, there's no doubt some other case will come up, as was discussed in a recent panel we had on the topic during the Search Engine Strategies show in San Jose.
For more about these type of issues, see the Advertising & Listings section of the Search Engines & Legal Issues page I maintain.