“Google makes money not by reason of the nature of the keyword, but by someone clicking on the keyword,” Google lawyer Alexandra Neri told a 15-judge panel of the European Court of Justice in Luxembourg today. “The decision to click or not to click belongs to who — clearly to the Internet user.”
Do you buy that argument by Google in the LVMH keyword lawsuit in the EU? I think it sounds a lot like, “Guns don’t kill people, people kill people.” Which is to say it is literally true, but does not address the argument.
In litigation I have experienced, judicially speaking, both sides, or all three or four of them depending on how you count it, of the keyword advertising issue. And I have trouble with the assertion that keyword advertising is not “trademark use,” and therefore categorically cannot be the basis of an infringement claim.
Readers of the blog know how skeptical I am of “initial interest confusion,” which is ultimately the premise of keyword-based infringement claims. (A lot skeptical.) But while the LIKELIHOOD OF CONFUSION piece of claims are not logically sustainable, I have trouble with the view, which is predominent among federal courts that sit where I sit (New York), that using a competitor’s trademark to trigger a competitive ad is not trademark use. The argument, typically, is that because the public does not know that the advertiser has bought the keyword — it is not displayed — there is no confusing association.
Like the courts across the river and out my window (i.e., in New Jersey), where I also practice, I don’t buy that, because the user (the consumer) has brought the original trademark to the table. The mark doesn’t need to be visible — it’s already in his head, whence it descended through his nerves and into his fingers as he typed it into the search field form.
I do agree with Alexandra Neri that the sale or purchase of a trademark for keyword advertising is not infringement (or contributory infringement). The infringement question may or may not be answered at the level of what indeed the ad triggered by the search term itself displays, or possibly where it goes and what you see when you click it.
Now, I don’t think that the question of contributory infringement, which is Google”s immediate problem, is satisfactorily addressed by saying “it’s not us, even though we sell keywords and make billions on their use,” any more than I buy that argument when eBay makes it.
But the use of a trademark — for this is how anyone speaking English would describe the the use of a trademark — to trigger an advertisement for a competing product?
Blogs don’t have opinions, though the people reading them may perceive bloggy opinions — so perceive this: Subject to applicable defenses, or the failure to meet the other elements of an infringement claim, using the other guy’s trademark to sell your stuff sounds like “trademark use” to me.
(Hat tip to David Milch!)