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Adwords again

July 2011 - Intellectual Property. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

The Advocate General proposes a more lenient treatment of search ads.

So-called adwords or search ads have been the subject of debate for quite a while. For should a business be allowed to use the trademark of another business as a Google adword? That is once again in question before the EU Court.
British retailer Marks & Spencer paid Google to have a link to its website appear when internet users searched on the word 'Interflora’. Interflora sued Marks & Spencer in the English High Court, claiming infringement of the Interflora trademark. The High Court decided to ask the EU Court's advice.
Small loop hole
The Advocate General recently issued his Opinion, saying that a trademark owner is entitled to prohibit others from using the trademark as an adword. But only if the average internet user would find it difficult to see if the products or services to which the adword links are those of the trademark owner or a third party.
But according to the Advocate General, the Interflora case is special because Interflora is a commercial network of florists. Marks & Spencer's use of Interflora as an adword may lead internet users to believe that Marks & Spencer is a member of Interflora. Accordingly, Marks & Spencer was infringing the Interflora trademark in this case.
The EU Court will now consider the High Court's questions and issue its ruling.
Norrbom Vinding notes:
  • that the Advocate General’s Opinion fits well with the more lenient approach that has been taken to adwords in recent EU Court cases; and

  • that it should therefore not be taken as a given that adwords per se infringe trademarks, but that each case must be considered on its merits.
The above does not constitute legal advice and should not be relied upon as such

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