Friday 25 September 2009

Darren Olivier

ECJ closer to Adwords decision

The advocate general of Europe's highest court, Poiares Maduro, gave his backing yesterday to Google's controversial AdWords system. The opinion is not binding on the European Court of Justice (ECJ), but the court tends to follow the advocate general's opinion in the majority of cases. Source: World Trademark Review (WTMR).

RSA and other African courts tend take the lead from the ECJ so the advocate general's opinion is a useful guideline for this hotly contested topic. This is what he had to say, according to WTMR:

"Poiares Maduro states that Google has not committed trademark infringement by allowing advertisers to select, through the AdWords system, keywords corresponding to trademarks on the grounds that such selection is not use in the form of a sale of a product or service to the general public. Therefore, this use cannot be considered as being a use made in relation to goods or services identical or similar to those covered by the trademark. Similarly, advertisers themselves do not commit a trademark infringement by selecting keywords corresponding to trademarks. Poiares Maduro also reasons that the sponsored links themselves do not cause trademark infringement as they do not establish a risk of confusion on the part of consumers as to the origin of goods or services. According to the advocate general, internet users are aware that other sites, not just the rights holder's site, will appear in search results. He adds that internet users' access to information concerning the trademark should not be limited to or by the mark owner even if the mark at issue has a reputation."

A final decision from the ECJ is not expected until early next year.

Darren Olivier

Darren Olivier

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