On the 19th of November the Paris Civil Court of Second instance found that Google AdWords in Google France v Syndicat français de la literie has not infringed TM-rights and was furthermore as a (hosting) provider exempted from liability.This comes as a big surprise, taking into account the traditionally very trademark-owner approach of French courts. This case is however NOT ONE OF THE CASE which was REFERRED TO THE ECJ.
Questions remaining after Google France: When discussing the issue AdWords and liability there are three aspects that need to be addressed separately:The liability of Google AdWords for (direct) trademark infringement is the first issue. However this issue was one of the very few things the ECJ in Google really made clear in it’s Google France decision. In the view of the ECJ Google does not infringe third party TM as Google doesn’t use the TM in the course of trade (para 55). Thus, following the ECJ’s Google France decisions it will be very hard to a court to rule that Google infringed third party TM rights. The second issue is the liability of individual advertisers for trademark infringements. The ECJ’s answer to this question was very vague and is currently the most important question in regards to keyword advertising. The third issue concerns the indirect liability of Google as it a (hosting) provider, allowing advertisers to book keywords and to draft the text of ads. The ECJ was again very vague when it came to answering this question, and left practitioners, lawyers and judges with the smart formula that Google might only be exempted from liability for the TM-infringements of its clients if Google remained ‘neutral‘. Needless to say that the ECJ didn’t really specify what it meant by ‘neutral‘ ...Zum vollständigen Artikel