Thursday, January 06, 2011

Google AdWords in the Netherlands

The first Dutch AdWords case is in, and it is curiously backwards compared to the ECJ's approach, because it views the problem almost entirely from a comparative advertising point of view. In Google France, the ECJ said:

70 It must be borne in mind, in that regard, that the Court has already held that the use by an advertiser, in a comparative advertisement, of a sign identical with, or similar to, the mark of a competitor for the purposes of identifying the goods and services offered by the latter and to compare its own goods or services therewith, is use ‘in relation to goods or services’ for the purposes of Article 5(1) of Directive 89/104 (see O2 Holdings and O2 (UK), paragraphs 35, 36 and 42, and L’Oréal and Others, paragraphs 52 and 53).

71 Without its being necessary to examine whether or not advertising on the internet on the basis of keywords which are identical with competitors’ trade marks constitutes a form of comparative advertising, it is clear in any event that, as has been held in the case-law cited in the preceding paragraph, the use made by the advertiser of a sign identical with the trade mark of a competitor in order that internet users become aware not only of the goods or services offered by that competitor but also of those of the advertiser constitutes a use in relation to the goods or services of that advertiser.
In the Dutch expedited procedure ruling of Tempur Benelux et al. v. The Energy+ Company of 20 December, however, the Court in the Hague starts by observing that this is certainly a case of comparative advertising under art. 6:194a of the Civil Code. (par. 4.3) It then cites some ECJ comparative advertising case law like O2, Toshiba and Siemens to shut down the plaintiff's argument that the use of its trade mark was unlawful per se (par. 4.4), before examining the details of defendant's use of the trade mark in light of this case law. Only there does the Judge cite the Google France case: to support the idea of confusion regarding origin as undermining the defendant's case for legitimate comparative advertising. In making this argument, the judgement relies more on the L'Oréal precedent that was also cited by the ECJ in Google France (cf. above) than on Google France itself.

Of course, much of the rest of the Tempur case is legitimately about comparative advertising, given that the plaintiff also objected to the manner in which the defendant compared their respective products on its website, but I would have thought that an AdWords case should be dealt with under the specific precedent that we have at our disposal for that situation, rather than under the general comparative advertising framework, even if the latter does arguably apply.

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