Update 57: June 10, 2008
1. European Court of Justice will hear Google
So far, there have been more than 70 decisions on
Adwords in EU member states, more than 30 in France alone. The rulings differ in
finding and reasoning. The use of trademark protected terms as keywords may be
legal in some member states (e.g. in Great Britain), may be illegal in other
member states (e.g. in France
and Italy). German courts are split on this question.
It seems that advertisers will
finally get some very important advice. The European Court of Justice in
Luxembourg will hear a trademark infringement suit concerning Google AdWords!
Its decision will probably influence future adwords lawsuits in all 27 member
states, because trademark law is harmonised across the EU (see:
First Council Directive 89/104/EEC of 21 December 1988 to approximate
the laws of the Member States relating to trade marks), and could
force Google to change its policy o
ver trademarks and keywords in some member
In 2005 Louis Vuitton successfully sued Google;
not only for allowing
keyword combinations that associate plaintiff's protected marks with terms
including "imitation", "fake" and "copies", but also for proposing such terms to
would-be advertisers (Louis
Vuitton Malletier / Google, Civil Court of Paris (TGI), February 4,
June 2006 The Paris Court of Appeals agreed with that decision and found
Google guilty of trademark counterfeiting and unfair competition.
Google appealed to the Cour de cassation,
the main court of last resort in France. The Court decided to ask the European
Court of Justice whether the offering of alternative choices of (trademark
protected) keywords breaches trade mark laws.
The decision can be found at:
http://www.juriscom.net/documents/casscom20080520.pdf (French). For comments
http://www.nicolas-herzog.net/categorie-10074671.html (both French) and
There have been two more AdWords related court
decisions in France this year:
Tribunal de Grande Instance Paris, decision of
March 14, 2008 - "Citadines"
2. USA - Court: Keyword Metatags are a poor indicator
more than ten years of metatag cases: The United States District Court
for the Eastern District of Wisconsin is the first to realize that keyword
metatags don't matter to search engines!
Standard Process, Inc. v. Banks, 2008 WL 1805374 (E.D. Wis. April 18, 2008):
plaintiff in Promatek, Dr. Banks used Standard Process trademarks in the
metatags of his website. However, today “modern search engines make little if
any use of metatags.” ... As more and more webmasters “manipulated their keyword
metatags to provide suboptimal keyword associations, search engines
progressively realized that keyword metatags were a poor indicator of relevancy.”
Accordingly, search engines today primarily use algorithms that rank a website
by the number of other sites that link or point to it."
more information on the case see: Goldman, Eric,
Court Says Keyword Metatags Don't Matter - Standard Process v. Banks,
Technology & Marketing Law Blog
3. Belgium - Copiepresse v. Google - The copyright battle
Back in April 2006 the Belgian newspaper group
Copiepresse filed a lawsuit against Google for re-printing parts of their
articles and headlines on Google News and caching their web pages. Google lost
in 2007, but appealed the decision. For over a year, Google and Copiepresse went
into negotiations and tried to find a solution, but it now seems those talks
have broken down. Copiepresse wants Google to pay 4 million Euro immediately,
and maybe more later. Professor Alain Berenboom of the Free University of
Brussels estimates that the losses attributable to Google's activities were
between € 32.8 million and € 49.2 million for a single year! I very much doubt
that the newspapers really suffered such a loss. Quite on the contrary. Without
Google, they probably would have had less visitors and less income from ads. To
win the case, Copiepresse has to show that the headlines and extracts are
copyright procted and with regard to the caching issue, that Google's behavior amounts to copyright infringement (which is very likely in European
countries, because of the lack of a "fair use" defence).
The court case will resume on September 18 to
decide if the infringements are valid and whether the damages payment is
For more information see:
Belgian group seeks up to $77.2 mln from Google, Reuters
4. USA - Citysearch faces click fraud lawsuit
Tom Lambotte is suing Citysearch.com, because the
advertising company allegedly charged him improperly for "fraudulent clicks". In
his view, Cityseach failed to take any significant measures to track or prevent
click fraud and fails to adequately warn its existing and potential customers
about the existence and prevalance of click fraud. The incident described in the
complaint seems to be of minor importance. Between December 11, 2007 and December 25, 2007 Lambotte
received a total of nine clicks on his ads, between December 26, 2007 and the
end of December his ad received between 12 to 16 porported clicks per day. If this
sudden increase of clicks is the result of click fraud, remains to be seen. Even
if this is the case, the damage the plaintiff might have suffered, might not be
higher than 50 US-Dollars...
Lambotte v. IAC/InterActiveCorp. (Cal. Superior Ct.
dated May 27, 2008)
For more information see:
5. USA - Hyperlink to child pornography =
According to a military appellate court's decision
in the USA, the act of distributing a hyperlink to an online source of child
pornography does not subject the defendant to criminal liability for
distributing the child pornography available at that web site.
P. Navrestad was charged under Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000), with distributing and
possessing child pornography in violation of the Child Pornography Prevention
Act of 1996 (CPPA), 18 U.S.C. §§ 2251-2260 (2000). He had send a hyperlink to a
Yahoo! Briefcase during an Internet chat session. The linked to site contained
child pornography images. 18 U.S.C. § 2256(8) defines child pornography as “any
visual depiction, including any photograph, film, video, picture, or computer or
computer-generated image or picture . . . of sexually explicit conduct, where .
. . the production of such visual depiction involves the use of a minor engaging
in sexually explicit conduct." "Visual depiction” in turn, “includes . . .
data stored on computer disk or by electronic means which is capable of
conversion into a visual image.” 18 U.S.C. § 2256(5).
So the key question was whether a hyperlink
contains “data stored . . . by electronic means which is capable of conversion
into a visual image." The court stressed the fact that a hyperlink only provides the
recipient with a path to another website. It does not contain data itself. So
the court held that Navrestad did not distribute child pornography. But the
decision was a close one, 3:2. In his dissenting opinion, judge Effron wrote: "The
recipient’s ability to access and use images transmitted by hyperlink is
functionally indistinguishable from the ability to access and use images
transmitted as individually saved files."
United States v. Navrestad,
No. 07-0199 (C.A.A.F., May 14, 2008).
6. USA - Google sued over "fraudulent" AdWords
(Goddard v. Google)
Jenna Goddard claims she was
injured when she provided her cell phone number to an allegedly fraudulent
mobile subscription service website and was charged for unwanted mobile content
services in form of premium text messages. But instead of suing the subscription
service, she went after Google and sued the company. Why? Goddard says that she
performed a Google search for "ringtone" and an ad pointed her to the scammy
In its Content policy Google
only allows a ad for a mobile subscription service, if it accurately discloses
a host of higly relevant information to consumers, such as the service's price,
subscription period and cancellation procedures (for details see
d claims that Google is aware that mobile subscription services frequently do not
disclose these terms, but driven by financial motivations does not live up to
its contractual obligations not to run ads for these companies. "Fortunately for
deceptive mobile subscription services, Google has systematically declined to
live up to its contractual obligations, irrespective of its public
pronouncements to do so, opting instead to line its own pockets through an 'anything
goes' approach to the advertising and sale of mobile content," reads the