French Courts to Google™: Non!

Google has suffered a number of setbacks in French courts over the past few weeks, as decisions have found GoogleAds (which targets advertisements based on search terms entered by Google users) violates the rights of the companies who actually own the trademarked search term.

First impressions: I tend to side with the authors of this article, who are skeptical of the reasoning behind the decisions. If one views shopping via a search engine like shopping in general, it doesn't seem like an abuse of trademark for Google (and its paid advertisers) to situate their products next to similar products, which is essentially what Google Ads does. To use an old economy analogy: when you go into Walgreen's and ask what aisle the Kleenex is in, Walgreen's is not violating Kleenex's trademark by pointing you to an aisle with a whole selection of facial tissues, some of which are not Kleenex. One might argue that this is different because Google makes advertisers pay for their ad to come up when that search term is entered. Two points in response: first, it is the advertisers who select the terms (though there is some dispute as to whether Google steers them towards certain terms). If absolute control over your trademark is the goal, in the long term it makesmore sense to go after the advertisers themselves (if they are indeed doing something illegal, which they probably aren't), rather than going after Google. Outside of the law, we have a saying for what Le Meridian and Vuitton are doing: "shooting the messenger". Second, outside of the Internet world, retailers like Wal-Mart, for example, routinely negotiate with producers to determine what brands/items they will stock. They will carry several brands of facial tissues, for example, and they negotiate with many producers to get the best prices. So in a sense, these producers pay Wal-Mart (in the form of a lower price) to have access to Wal-Mart's huge market of shoppers. In a similar sense, producers who pay for GoogleAds are doing much the same thing in an Internet context: they're paying for access to Google's huge user base, and at the same time they are (through the keywords) designating what aisle (category) they should be put in.

Trademark rights aren't absolute, of course, and competitors can use a brand name in many instances for comparative advertising purposes. I think the French court is just a little behind the technological curve here, fundamentally doesn't understand how Google works (nor do I really, for that matter), and so it deferred to what it saw as the status quo. But my gut tells me the decision shouldn't stand. We'll see.

Another issue: how does the French court's ruling affect Google's behavior in the US of A? On this one I just don't know, but I'd love to be informed.

In the interim, any tech-savvy readers or IP specialists are invited to weigh in with their own views on this issue in comments.