The Advocate General has recently given his opinion that the use of a trade mark as a key word which triggers the appearance of an advertisement by a competitor when an internet search is carried out is not an infringement of the owner’s trade mark.
Key words are used to guide Internet searches to websites, so the use of a competitor’s name to bring searchers for their products to your website is relatively commonplace.
After a legal action against Google (itself a trade mark), the Advocate General concluded that Google’s use of trade marks as key words to trigger ads was permissible. However, he was at pains to point out that use of visible trade marks within the ads (key words are often placed on a site so they are invisible to the eye but visible to web search engines) would be an infringement.
The case will come as a relief to Google and many advertisers, as key words are the basis under which Google’s ‘adwords’ service operates. This service allows advertisers to place advertisements on results pages of web searches, driven by the words used for the search.
The decision has been widely criticised and it is quite possible that the Advocate’s opinion (which is not binding) will not be agreed by the European Court.