This document discusses search engine optimization and ranking. It covers two types of ranking: organic ranking which results from relevant content and keywords, and search engine marketing (SEM) which is paid placement in search results. The document outlines litigation around the use of trademarks as keywords for SEM and in organic optimization. Court rulings established that trademarks can be used as keywords for SEM as long as they do not imply sponsorship or confuse users, while organic optimization must comply with search engine guidelines.
CE Marking: What Can Legal Metrology Learn From Intellectual Property?cbock
1. The document discusses similarities between intellectual property and CE marking, specifically around challenges of counterfeiting and ensuring authenticity.
2. It suggests CE marking could be registered as a collective trademark to strengthen enforcement against misuse. However, this may not be sufficient without clearly defining ownership of the CE brand.
3. Tools from intellectual property like civil and criminal penalties could also help address CE marking misuse cases, if adapted for legal metrology needs.
Microsoft power point comparative study of the main features of unfair comp...sanjeev kumar chaswal
This document discusses unfair competition laws. It begins by explaining that while competition is generally encouraged, competitors may sometimes use unfair means like misleading the public or directly attacking other businesses. International laws like the Paris Convention and TRIPS agreement require countries to prevent unfair competition. The US has no overarching unfair competition law, but addresses aspects of it through tort laws, consumer protection laws, and self-regulation. The Lanham Act also establishes some unfair competition provisions at the federal level regarding false designations of origin.
Trademark issues in PPC search marketing in the UKMike Teasdale
My presentation for Search Engine Strategies, 17 Feb 2009, London.
This is a short guide to the current state of play around trademark protection and search marketing in the UK, including a brief summary of some current legal cases in the UK and Europe.
8. Sponsored Ads and Trademark Law - Search University 3Semetis
Sponsored Ads and Trademark Law: Legal Challenges and Opportunities: Benjamin Docquir is a partner lawyer at Simont Braun, which has one of the largest intellectual property practice in Belgium. He will explain the new legal framework around the use of branded/trademarked keywords in Google AdWords. His scope will be to explain this new legal framework, understand the legal risks involved for advertisers as well as give a business view on the opportunities available.
CE Marking: What Can Legal Metrology Learn From Intellectual Property?cbock
1. The document discusses similarities between intellectual property and CE marking, specifically around challenges of counterfeiting and ensuring authenticity.
2. It suggests CE marking could be registered as a collective trademark to strengthen enforcement against misuse. However, this may not be sufficient without clearly defining ownership of the CE brand.
3. Tools from intellectual property like civil and criminal penalties could also help address CE marking misuse cases, if adapted for legal metrology needs.
Microsoft power point comparative study of the main features of unfair comp...sanjeev kumar chaswal
This document discusses unfair competition laws. It begins by explaining that while competition is generally encouraged, competitors may sometimes use unfair means like misleading the public or directly attacking other businesses. International laws like the Paris Convention and TRIPS agreement require countries to prevent unfair competition. The US has no overarching unfair competition law, but addresses aspects of it through tort laws, consumer protection laws, and self-regulation. The Lanham Act also establishes some unfair competition provisions at the federal level regarding false designations of origin.
Trademark issues in PPC search marketing in the UKMike Teasdale
My presentation for Search Engine Strategies, 17 Feb 2009, London.
This is a short guide to the current state of play around trademark protection and search marketing in the UK, including a brief summary of some current legal cases in the UK and Europe.
8. Sponsored Ads and Trademark Law - Search University 3Semetis
Sponsored Ads and Trademark Law: Legal Challenges and Opportunities: Benjamin Docquir is a partner lawyer at Simont Braun, which has one of the largest intellectual property practice in Belgium. He will explain the new legal framework around the use of branded/trademarked keywords in Google AdWords. His scope will be to explain this new legal framework, understand the legal risks involved for advertisers as well as give a business view on the opportunities available.
The court found in favor of BSkyB in its lawsuit against EDS regarding a failed IT project. The court found EDS guilty of fraudulent and negligent misrepresentation regarding timelines and plans. EDS claimed the project could be completed in 18 months but knew it had no grounds for that claim. The court also found EDS in breach of contract for failing to provide experienced personnel and services as outlined. BSkyB was awarded £200 million in interim damages, with the potential for higher final damages, as the court found BSkyB would have contracted with another provider and avoided higher costs and delays.
Google Adwords and Meta-Tag litigation Len Mancini
This document discusses several key court cases related to the use of trademarks in online advertising and search engines:
1) The Google France Decision held that an advertiser's purchase of trademarks as keywords to trigger ads is a "use in the course of trade" but the search engine hosting the ads is not liable as it does not directly use the trademarks.
2) In Cosmetic Warriors v Amazon, the court found that two of Amazon's ads using trademarks as keywords did not confuse consumers about the ad's source, but one ad using the trademark in copy text did affect the trademark's origin function.
3) Interflora v M&S initially found M&S ads triggered by Interflora's trademark confused
Latham & Watkins is an international law firm organized as a limited liability partnership under Delaware law, with affiliated partnerships in several countries. The firm has a foreign legal consultant office in South Korea and works with a law office in Saudi Arabia.
A recent OECD roundtable discussed the implications of e-commerce for competition policy and technological changes transforming business relationships. Concerns about algorithms enabling collusion are overblown, as machines are not close to learning to collude without direction, and individual business models and incentives make broad coordination unlikely.
When it comes to online marketplaces and vertical restraints, sellers on marketplaces act as sellers to customers. Suppliers and platforms should be free to set fees paid by suppliers for
TrustArc Webinar-Advertising, Privacy, and Data Management Working TogetherTrustArc
Today, more and more companies use advertising technologies (AdTech) to reach their consumers and better understand their preferences. This can lead to multiple data protection risks. Data privacy awareness is increasing due to seismic developments in the industry brought about by key players such as Google and Apple. In parallel, global regulations set stricter guidelines around the collection, storage, and use of personal data.
This is not over. With the decisions coming out soon on analytics, how will the advertising technologies landscape adjust? Ultimately, how can advertising, privacy, and data management work together?
Our panel in this webinar explored the practical steps your organization should take to ensure that its digital advertising practices are compliant with data protection laws.
This webinar reviews:
- The current practices and developments in the AdTech industry
- The laws and regulations governing AdTech
- How to address the privacy issues related to advertising technology
Brian Miller, solicitor and partner at Stone King LLP and Lauren Mitchum, trainee solicitor, provide a useful guide to ensuring your website is compliant with the law in all aspects, including advice on domain names, website content, disability discrimination, online terms, display of mandatory information, the impact of the Consumer Contracts Regulations, privacy policies and cookies, online advertising and the processing of payments
Online auction sites final report of the abcnyRonald Coleman
This document discusses the issue of whether online auction sites can be held liable for trademark infringement that occurs through the sale of counterfeit goods on their sites. It provides an overview of counterfeiting on online auction sites and the policies auction sites have adopted to address it. It then examines the legal doctrine of secondary trademark infringement and relevant case law holding brick-and-mortar flea markets liable. While existing law provides some guidance, courts have yet to clearly determine the extent of liability for online auction sites, as they attempt to balance threats to trademark law with reluctance to hold third parties responsible for others' acts.
Tal ron drihem and co - LAC 2017 - Clarifying the situation: Legal responsibi...iGB Affiliate
This year has already proven that the forex and binary industries are not about to stabilise from a regulatory point of view.
Leading Financial and Gaming Attorney Tal Itzhak Ron, Chairman and CEO of Tal Ron, Drihem and Co. will present a hands-on workshop to provide clarity over recent developments and uncertainties.
What is happening in the global binary options regulation space?
Are affiliates legally liable to brokers' issues with traders?
Content and "Character" Affiliates and deceptive marketing
Court rulings you should know about
Affiliate and IBs responsibilities comparison
- The ASA has expanded its remit to regulate online marketing communications beyond just paid-for advertising to also include companies' own websites and other non paid-for online spaces under their control.
- The key questions for determining if an online marketing communication falls under the new ASA rules are if it is under the advertiser's control, primarily designed to sell something, and directly connected to the supply or transfer of products.
- Types of content that are excluded include editorial, news, corporate reports, and user generated content unless the advertiser originally solicited or adopted the user generated content.
When one door closes, another opens; but we often look so long and so regretfully upon the closed door that we do not see the one which has opened for us.
~ Alexander Graham Bell
This document is a letter from the Federal Trade Commission providing guidance to search engines regarding clearly distinguishing paid search results from organic results. It summarizes a 2002 letter advising that failure to distinguish the two could be deceptive to consumers. While search engines initially complied, some have become less noticeable over time. The FTC recommends search engines use prominent shading, borders, and text labels to clearly label paid results as advertising and ensure disclosures are noticeable on different devices.
This document provides an overview of valuation methods for intangible assets. It discusses the Interbrand Best Global Brands 2020 report and highlights new entrants to the top 100 brands. It then defines intangible assets and outlines the major types. The document reviews several valuation approaches for intangibles, including the income approach, cost approach, and market approach. It provides details on specific valuation methods like relief from royalty, brand earnings multiple, discounting, multi-period excess earnings, and assembled workforce.
These slides by the OECD Competition Division introduce the OECD background note presented during the discussion on "Big Data: Bringing competition policy to the digital era" held during the 126th meeting of the OECD Competition Committee on 29 November 2016. More papers and presentations on the topic can be found out at www.oecd.org/daf/competition/big-data-bringing-competition-policy-to-the-digital-era.htm
FG2A France (Fédération des Garanties et Assurances Affinitaires): Response of the consultation paper CP-16-2016 on Technical Advice on possible delegated acts concerning the Insurance Distribution Directive.
Treasure Data Marketers Guide to GDPR (Global Data Protection Regulation)WBDC of Florida
The document provides guidance for marketers on complying with the EU's General Data Protection Regulation (GDPR). It discusses segmenting customer databases into EU and non-EU audiences. It also covers obtaining consent, managing preferences and opt-outs, running permission campaigns, and working with compliant vendors. Marketers must give EU citizens access to their data, allow data portability, and delete data upon request to comply with the GDPR.
This document summarizes a presentation on pricing algorithms and antitrust compliance given by Francesco Liberatore of Squire Patton Boggs. It discusses the EU Commission's view that pricing practices illegal offline are also illegal online. Algorithms remain under a firm's control, so firms are liable for algorithm actions. The document reviews examples of pricing monitoring, resale price maintenance, and horizontal collusion that could raise antitrust issues. It proposes a "Project HAL" training program to help algorithms avoid collusive behaviors.
Marketing professionals urge apple to adopt standards promoting interoperabil...njaimes
1. Global marketing professionals welcome Apple's decision to maintain the IDFA in iOS 14 while also introducing new privacy features.
2. However, they have concerns about Apple's new mandatory IDFA opt-in pop-up for apps, including that it does not comply with GDPR consent requirements, is not interoperable with existing digital advertising standards, and could negatively impact app publisher revenues.
3. They urge Apple to ensure the pop-up can be customized, is interoperable with standards like the IAB Europe's Transparency & Consent Framework, and to conduct an impact assessment before implementing iOS 14 updates.
1) The Competition and Markets Authority fined two suppliers, Ultra Finishing and ITW Limited, for restricting customers' ability to discount products. Ultra Finishing was fined nearly £800,000 and ITW £2.2 million.
2) While suppliers want to maintain brand value and pricing, competition law prohibits restrictions on resellers' pricing freedom. The CMA found Ultra Finishing and ITW violated these rules through pricing guidelines and threats to customers who discounted products.
3) Experts advise suppliers to understand competition law rules, develop a strategic legal approach, implement compliance thoroughly through training and culture, and seek guidance on legitimate ways to address issues like internet discounting within the law.
Think Positive: International Intellectual Property SystemLawPlus Ltd.
“In the age of the knowledge economy, the efficient and creative use of knowledge is a key determinant of international competitiveness, wealth creation and improved social welfare.”
“An effective intellectual property (IP) system embedded within a national strategy which anchors IP considerations firmly within the policy-making process will help a nation to promote and protect its intellectual assets, thereby driving economic growth and wealth creation”
Kamil Idris
Former WIPO Director General
The court found in favor of BSkyB in its lawsuit against EDS regarding a failed IT project. The court found EDS guilty of fraudulent and negligent misrepresentation regarding timelines and plans. EDS claimed the project could be completed in 18 months but knew it had no grounds for that claim. The court also found EDS in breach of contract for failing to provide experienced personnel and services as outlined. BSkyB was awarded £200 million in interim damages, with the potential for higher final damages, as the court found BSkyB would have contracted with another provider and avoided higher costs and delays.
Google Adwords and Meta-Tag litigation Len Mancini
This document discusses several key court cases related to the use of trademarks in online advertising and search engines:
1) The Google France Decision held that an advertiser's purchase of trademarks as keywords to trigger ads is a "use in the course of trade" but the search engine hosting the ads is not liable as it does not directly use the trademarks.
2) In Cosmetic Warriors v Amazon, the court found that two of Amazon's ads using trademarks as keywords did not confuse consumers about the ad's source, but one ad using the trademark in copy text did affect the trademark's origin function.
3) Interflora v M&S initially found M&S ads triggered by Interflora's trademark confused
Latham & Watkins is an international law firm organized as a limited liability partnership under Delaware law, with affiliated partnerships in several countries. The firm has a foreign legal consultant office in South Korea and works with a law office in Saudi Arabia.
A recent OECD roundtable discussed the implications of e-commerce for competition policy and technological changes transforming business relationships. Concerns about algorithms enabling collusion are overblown, as machines are not close to learning to collude without direction, and individual business models and incentives make broad coordination unlikely.
When it comes to online marketplaces and vertical restraints, sellers on marketplaces act as sellers to customers. Suppliers and platforms should be free to set fees paid by suppliers for
TrustArc Webinar-Advertising, Privacy, and Data Management Working TogetherTrustArc
Today, more and more companies use advertising technologies (AdTech) to reach their consumers and better understand their preferences. This can lead to multiple data protection risks. Data privacy awareness is increasing due to seismic developments in the industry brought about by key players such as Google and Apple. In parallel, global regulations set stricter guidelines around the collection, storage, and use of personal data.
This is not over. With the decisions coming out soon on analytics, how will the advertising technologies landscape adjust? Ultimately, how can advertising, privacy, and data management work together?
Our panel in this webinar explored the practical steps your organization should take to ensure that its digital advertising practices are compliant with data protection laws.
This webinar reviews:
- The current practices and developments in the AdTech industry
- The laws and regulations governing AdTech
- How to address the privacy issues related to advertising technology
Brian Miller, solicitor and partner at Stone King LLP and Lauren Mitchum, trainee solicitor, provide a useful guide to ensuring your website is compliant with the law in all aspects, including advice on domain names, website content, disability discrimination, online terms, display of mandatory information, the impact of the Consumer Contracts Regulations, privacy policies and cookies, online advertising and the processing of payments
Online auction sites final report of the abcnyRonald Coleman
This document discusses the issue of whether online auction sites can be held liable for trademark infringement that occurs through the sale of counterfeit goods on their sites. It provides an overview of counterfeiting on online auction sites and the policies auction sites have adopted to address it. It then examines the legal doctrine of secondary trademark infringement and relevant case law holding brick-and-mortar flea markets liable. While existing law provides some guidance, courts have yet to clearly determine the extent of liability for online auction sites, as they attempt to balance threats to trademark law with reluctance to hold third parties responsible for others' acts.
Tal ron drihem and co - LAC 2017 - Clarifying the situation: Legal responsibi...iGB Affiliate
This year has already proven that the forex and binary industries are not about to stabilise from a regulatory point of view.
Leading Financial and Gaming Attorney Tal Itzhak Ron, Chairman and CEO of Tal Ron, Drihem and Co. will present a hands-on workshop to provide clarity over recent developments and uncertainties.
What is happening in the global binary options regulation space?
Are affiliates legally liable to brokers' issues with traders?
Content and "Character" Affiliates and deceptive marketing
Court rulings you should know about
Affiliate and IBs responsibilities comparison
- The ASA has expanded its remit to regulate online marketing communications beyond just paid-for advertising to also include companies' own websites and other non paid-for online spaces under their control.
- The key questions for determining if an online marketing communication falls under the new ASA rules are if it is under the advertiser's control, primarily designed to sell something, and directly connected to the supply or transfer of products.
- Types of content that are excluded include editorial, news, corporate reports, and user generated content unless the advertiser originally solicited or adopted the user generated content.
When one door closes, another opens; but we often look so long and so regretfully upon the closed door that we do not see the one which has opened for us.
~ Alexander Graham Bell
This document is a letter from the Federal Trade Commission providing guidance to search engines regarding clearly distinguishing paid search results from organic results. It summarizes a 2002 letter advising that failure to distinguish the two could be deceptive to consumers. While search engines initially complied, some have become less noticeable over time. The FTC recommends search engines use prominent shading, borders, and text labels to clearly label paid results as advertising and ensure disclosures are noticeable on different devices.
This document provides an overview of valuation methods for intangible assets. It discusses the Interbrand Best Global Brands 2020 report and highlights new entrants to the top 100 brands. It then defines intangible assets and outlines the major types. The document reviews several valuation approaches for intangibles, including the income approach, cost approach, and market approach. It provides details on specific valuation methods like relief from royalty, brand earnings multiple, discounting, multi-period excess earnings, and assembled workforce.
These slides by the OECD Competition Division introduce the OECD background note presented during the discussion on "Big Data: Bringing competition policy to the digital era" held during the 126th meeting of the OECD Competition Committee on 29 November 2016. More papers and presentations on the topic can be found out at www.oecd.org/daf/competition/big-data-bringing-competition-policy-to-the-digital-era.htm
FG2A France (Fédération des Garanties et Assurances Affinitaires): Response of the consultation paper CP-16-2016 on Technical Advice on possible delegated acts concerning the Insurance Distribution Directive.
Treasure Data Marketers Guide to GDPR (Global Data Protection Regulation)WBDC of Florida
The document provides guidance for marketers on complying with the EU's General Data Protection Regulation (GDPR). It discusses segmenting customer databases into EU and non-EU audiences. It also covers obtaining consent, managing preferences and opt-outs, running permission campaigns, and working with compliant vendors. Marketers must give EU citizens access to their data, allow data portability, and delete data upon request to comply with the GDPR.
This document summarizes a presentation on pricing algorithms and antitrust compliance given by Francesco Liberatore of Squire Patton Boggs. It discusses the EU Commission's view that pricing practices illegal offline are also illegal online. Algorithms remain under a firm's control, so firms are liable for algorithm actions. The document reviews examples of pricing monitoring, resale price maintenance, and horizontal collusion that could raise antitrust issues. It proposes a "Project HAL" training program to help algorithms avoid collusive behaviors.
Marketing professionals urge apple to adopt standards promoting interoperabil...njaimes
1. Global marketing professionals welcome Apple's decision to maintain the IDFA in iOS 14 while also introducing new privacy features.
2. However, they have concerns about Apple's new mandatory IDFA opt-in pop-up for apps, including that it does not comply with GDPR consent requirements, is not interoperable with existing digital advertising standards, and could negatively impact app publisher revenues.
3. They urge Apple to ensure the pop-up can be customized, is interoperable with standards like the IAB Europe's Transparency & Consent Framework, and to conduct an impact assessment before implementing iOS 14 updates.
1) The Competition and Markets Authority fined two suppliers, Ultra Finishing and ITW Limited, for restricting customers' ability to discount products. Ultra Finishing was fined nearly £800,000 and ITW £2.2 million.
2) While suppliers want to maintain brand value and pricing, competition law prohibits restrictions on resellers' pricing freedom. The CMA found Ultra Finishing and ITW violated these rules through pricing guidelines and threats to customers who discounted products.
3) Experts advise suppliers to understand competition law rules, develop a strategic legal approach, implement compliance thoroughly through training and culture, and seek guidance on legitimate ways to address issues like internet discounting within the law.
Think Positive: International Intellectual Property SystemLawPlus Ltd.
“In the age of the knowledge economy, the efficient and creative use of knowledge is a key determinant of international competitiveness, wealth creation and improved social welfare.”
“An effective intellectual property (IP) system embedded within a national strategy which anchors IP considerations firmly within the policy-making process will help a nation to promote and protect its intellectual assets, thereby driving economic growth and wealth creation”
Kamil Idris
Former WIPO Director General
Similar to IFCLA Slides A Meillassoux SEO SEM TM & Unfair Competition 05 06 2014 (20)
Liability Clauses In Joint Venture Agreements Barcelona 2008Andre Meillassoux
I. The document discusses liability provisions in joint venture agreements for large IT projects involving multiple contractors.
II. It examines different schemes for structuring the agreements, including having no legal entity, a prime contractor model, or co-contractors.
III. Key clauses addressed are whether contractors should have solidarity or several liability, how to divide responsibilities if the cause of non-performance is uncertain, and limiting liability between co-contractors.
Legal Aspects of Application Software Providers Mexico 2005Andre Meillassoux
The document summarizes the current state of the application service provider (ASP) model. It discusses definitions of ASPs, market figures showing growth in ASP use. It outlines characteristics of ASPs like mutualization and various services provided. Contractual aspects are explored around general clauses, licensing, and specific ASP clauses. Major ASP players discussed include Oracle, Siebel-IBM, Salesforce.com, and Aspaway. New ASP offers from Microsoft and France Telecom are also mentioned.
2. 205/08/2015
Introduction
▌ The ranking of a website in internet searches is a strategic issue in order to be noticed on the
internet.
▌ Some search engines have an hegemonic position : Google®, Yahoo®, Bing®, Яндекс® in
Russia, or 百度 ([Baï Dou]) in China
▌ The ranking of a website may result of 2 factors : organic ranking and search engine
marketing (SEM) .
▌ The first can be “optimized”, and sometimes “manipulated” in order to obtain a better rank
▌ The second is a service proposed by the search engines, for example Google AdWords.
▌ In both cases, the choice of the key words is crucial.
▌ This has generated many disputes. Especially when the competitors use as key words
trademarks, companies’ names or domain names for which the owners think they have a
monopoly. This monopoly, notably for registered trademarks, has been almost “absolute” for
a long time, especially in France.
Search engine ranking and intellectual property : state of
the jurisprudence
5. 505/08/2015
▌ ORGANIC RANKING :
Organic ranking was supposed to be the result of neutral SE algorithms.
Nevertheless, it can be “optimized”, by “SEO” practices : know-how and techniques which
indeed upgrade the rank of a web page among the organic results. This is not a sponsored
ranking. One does not pay for this.
This optimization is made through relevant contents and the introduction of key words in the
title, in the texts and in the URL of the web pages. Also, the pages can be enriched and
updated regularly, or listed in an index… etc, which will ameliorate the ranking.
Organic ranking is a long term work and it is supposed to be the most efficient : some reckon
that 34% of web users select the first (organic) link of the search result page (Source : Le Nouvel
Economiste Magazine, n°1550, cahier n°2, from January 20 to 26 2011, Interview Alain LAIDET, page 40).
▌ SEM (OR « SPONSORED LINKS »):
SEM consists in buying one or more key words who are relevant in regards to the field of
activity. The sponsored link appears at the top or to the right of the result page, thus creating
a better visibility. This system can be expensive because the key words are auctioned and
some words are very popular.
This ranking system is “short term”. It enhances the instant visibility of the advertiser but in
the end it is considered as less effective than the organic ranking.
DISTINCTIONS BETWEEN THE 2 TYPES OF RANKING
7. 705/08/2015
▌ There is much case law, which is not harmonized. As a consequence, several cases were
brought to the ECJ, in particular in 2010 and 2011. On that occasion, the ECJ took position on
the respective liabilities of the service providers of SEM and of the advertiser.
▌ Several rulings have given to the national jurisdictions a framework to understand these
types of cases, especially :
GOOGLE France and GOOGLE , March 23, 2010 (joint cases C-236/08 to C-238/08)
INTERFLORA, September 22, 2011
▌ With these decisions, the CJEU has disrupted the French conception that is very protective of
the property rights.
▌ The competition laws principles aim to suppress the obstacles to the free competition inside
of the EU. On the other hand, the intellectual property principles aim to protect the
“monopoly” of the creators and trademark owners. Between the two, the ECJ has pushed far
the advantages towards the first.
LITIGATION REGARDING THE SEM
8. 805/08/2015
▌ The provider’s regime follows the derogatory regime of the intermediate technical provider.
As defined by article 6 of the French Law, called “LCEN” (June 21, 2004) transposing the
directive 2000/31/CE of June 8, 2000.
▌ For the ECJ, the service provider of SEM has a “merely technical, automatic and passive”
role.
▌ However, this overriding regime doesn’t grant absolute immunity and the provider can be
liable in two cases :
When the provider was informed of the unlawful nature of the data or the activities of
the advertiser and he didn’t promptly withdraw or rendered unreachable said data;
When the provider actively participated in the wording of the advertisement and/or in
the choice of the counterfeit key words.
THE LIABILITY OF THE SERVICE PROVIDERS OF SEM
9. 905/08/2015
▌ Case Google : « the proprietor of a trade mark is entitled to prohibit an advertiser from
advertising, on the basis of a keyword identical with that trade mark which that advertiser
has, without the consent of the proprietor, selected in connection with an internet referencing
service, goods or services identical with those for which that mark is registered, in the case
where that ad does not enable an average internet user, or enables that user only with
difficulty, to ascertain whether the goods or services referred to therein originate from the
proprietor of the trade mark or an undertaking economically connected to it or, on the
contrary, originate from a third party; »
▌ The advertiser’s liability: The ECJ considers that the owner of a trademark can oppose the
use of a sign identical to his trademark in business life , only if the use of this sign is likely to
impair one of the “functions” of the trademark.
▌ Among these functions :
The “function of indicating the origin”. It is the essential function of the trademark and
allows the origin of the product or service to be guaranteed to the customers.
The “advertising function”. This function was disqualified by the ECJ concerning the
AdWords.
THE ADVERTISER’S LIABILITY (1/2)
10. 1005/08/2015
THE ADVERTISER’S LIABILITY (2/2)
▌ As a result, the owner of a trademark cannot forbid the use of his trademark as a key
word in a SEM service, except only if this use by a third party impairs the function of
indicating the origin. The national jurisdictions are to appreciate this case-by-case.
▌ Therefore, only the content of the advert (and not the use of the TM) can be a source of
infringement:
It is the case if the trademark is replicated directly in the advert, without the
authorization of the owner;
And also if the advert is vague and does not enable to properly differentiate the
advertiser from the owner of the trademark, thus creating the confusion in the
mind of an average internet user.
▌ In the case INTERFLORA it is specified that the owner of a well known trademark is
entitled to forbid the use of signs identical or similar to their trademark by a third party, if
this use impairs on their function of indicating the origin and/or the investment function.
▌ This function is impaired if someone :
Undeservedly takes advantage on the trademark’s specifics or its fame
(free riding)
If there is a risk of dilution of the TM
or of tarnishing its fame
11. 1105/08/2015
▌ 4 judgments of the Cour de Cassation on July 13, 2010:
LOUIS VUITTON
GIFAM
VIATICUM and LUTECIEL
EUROCHALLENGES
In these judgments, the Cour de Cassation follows the rulings from the CJE and allows GOOGLE
to benefit of the derogatory liability regime of the technical providers,
Regarding the liability of the advertiser, the French jurisdictions have made their own the
framework provided by the ECJ. As a result, they have sentenced defendants (Cass. Com, July 13,
2010 « EUROCHALLENGES »; November 29, 2011, « SUZA ») or dismissed some cases (CA Paris,
Pôle 5, ch. 1, February 2, 2011 « AUTO IES ») following a case-by-case rule. The basis of the
decisions have either been Trademark infringement or unfair competition (usurpation of the
commercial name or the domain name for example).
The “Google AdWords” jurisprudence is now well established and the jurisdictions have a case by
case approach.
APPLICATION OF THE ECJ RULINGS IN THE FRENCH LEGAL
SYSTEM AND CONCLUSION (1/2)
12. 1205/08/2015
▌ Whereas in France, the owners of trademarks where very protected (some called this a
monopoly or quasi monopoly), the ECJ rulings made it clear that henceforth the trademarks
could be used freely as key-words in SEM, except if done in violation of some terms.
▌ Therefore, a trademark can now be used by an competitor as a key word in a SEM-type
service. For this use no authorization from the owner is needed on the condition that the
trademark is not reproduced in the text of the advert and that it doe not create any
confusion. The principle forbidding the use of a trademark is not valid any more.
▌ The Cour de Cassation, commercial chamber, takes it further in a judgment of Mai 14, 2013.
The Court considers that it a fault for the owner of a trademark to request from the ranking
provider to “take the necessary steps to insure that their website dict.fr alone appear at the
request dict.fr”. Furthermore, he asked that the advert of one of his competitors should not
appear as a link to this key word. The Court states that failing to prove a risk of confusion, the
owner of the trademark has “unduly prevented [him] from approaching some customers” and
therefore “of the possibility of generating an important turnover”.
The owner of the trademark was sentenced to 80.000 € in damages.
APPLICATION OF THE ECJ RULINGS IN THE FRENCH LEGAL
SYSTEM AND CONCLUSION (2/2)
13. 1305/08/2015
▌ Unlike SEM that is a paid service and is clearly identified as such, this ranking system is called
organic or natural.
▌ In the general opinion, the organic ranking is supposed to be more relevant, more genuine,
more truthful. Some of the search engines like Google have actually built their success relying
on these ideas. When one tapes in the name of a company, one wants to see it at the top of
the results, otherwise he will stop using this search engine.
▌ That is why the search engines care a lot that their algorithms are not flawed by the SEO
("Search Engine Optimizer’s”) practices
▌ SE Optimizers aim at optimizing the organic ranking. SEO in itself is a lawful practice but it can
sometimes be regarded as non compliant with the terms and conditions of the search
engines or with the law.
LITIGATION ABOUT ORGANIC RANKING
14. 1405/08/2015
▌ Indeed, the provider of SEO must be in line with the terms and conditions of the search
engines who edit good practices guides. The search engines are a “free” service, but they do
belong to private companies which imposes their own terms and conditions.
▌ If the rules are not followed, the search engines can take measures.
For example, they can lower the popularity index (PageRank for Google) and even exclude them
from the research index, leading their webpage to not be ranked at all. Emblematic cases : In
2006 Google excluded BMW from the index because they had created to many secondary pages
helping the site to be better ranked Or in February 2013 the British web site Interflora has been
invisible during 11 days.
▌ Methods called “Black hat SEO”, where a competitor or ill intentioned persons flaws the
rules. The beneficiary of these methods can be penalized by the search engines.
▌ For example : backlinks, misleading redirection, cloacking, negative SEO (using the
competitor’s code to create other pages), domain names with a chain of key words, doorway
sites, SpamCo (spaming the forums by commenting with a link), robbing relevant content,
hacking…etc.
LITIGATION AROUND ORGANIC RANKING
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▌ Meta tags: have been regularly sentenced in the last few years. Initially on the basis of
infringement as well as unfair competition and parasitism. E.g. Civil Court of PARIS, 3e ch. 4e
section, January 26, 2012, Webangelis/Laurent I.
▌ However, infringement is no longer used as much because some jurisdictions think that the
use of the trademark as metadata is not something the public can see. The infringement
charges are then rejected: TGI PARIS, 3rd chamber, 3rd section, 29th October 2010:
▌ “Meta tags are information lodged within a document and used by the search engines to rank
the web pages. These tags are not displayed, and are therefore invisible for the web users. A
trademark has to be noticeable by the web user to ensure that the origin of the product is
recognized and consequently, the use of a sign as a meta tag cannot be considered as
trademark infringement as foreseen in articles L.713-2 and L.713-3 of the intellectual
property code.”
Examples of Meta tags
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▌ Doorway pages: Cour d’appel of Douai Chamber 1, section 2, October 5, 2011
“By multiplying the booking of domain names including many times the term “bière”
promoting the creation of links [via the creation and establishment of websites called
doorways and lacking an offer] directing to their domain name, and thus, ranking him at the
top of the search engines results, Julien L. and the SARL Saveur Bière have committed acts of
unfair competition by depriving Céline S.’s website, of the same industry, from being normally
visited”.
The use of doorway websites is sentenced because, says the Court, “all of these techniques
aim at misleading the search engines”.
They were therefore condemn on the basis of unfair competition to 10.000€ of damages.
The doorway pages
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▌ Backlinking : It is the massive, sometimes automatic creation of hyperlinks on one or several
key words in order to obtain a better ranking on this key word. This practice is prohibited by
Google.
▌ In French law, the Cour d’appel of Paris recently condemned (March 28, 2014) the beneficiary
of backlinks pointing back to his website and that used the trademark of one of his main
competitor as an anchor .
“By using intensively, in the context of the creation of backlinks, the company name and the
domain name of a competitor as a key word, for organic requests, in order to mislead the
search engines, the defendant has, by this fact alone, provoked a unfair misappropriation of
customers and parasitic use of the investment carried out by the company Sofrigam created
beforehand and widely known in the considered market, by increasing his visibility in a
diverted way”.
The charges of TM infringement were rejected on the basis that “the links associated to the
word Sofrigam are for the most invisible, needing an analysis of the website to be detected, in
such way that they are not susceptible to generate confusion in the minds of the web user
who is looking to acquire Sofrigam products and will find as result of his request, Sofrigam’s
website ranked as one of the first site”.
The backlinks (also incoming links or inbound links)