We're all familiar with going onto Google and undertaking a search based on certain keywords and being faced with a list of possible sites to access. However, if one of the keywords that you're using is the same as a registered trade mark then is it acceptable for Google to refer you to a site offering imitations or similar types of goods?
According to the findings of a recent landmark case brought against internet search engines by brand owners in France, search engines cannot be prohibited from using the trade marks. The problem arises when Adwords are brought into the equation. Adwords are paid for by consumer sites who want to be listed when a potential buyer 'Googles' a certain word. It was decided that Adwords made it difficult for the searching public to ascertain whether they were being directed to an authentic site or not and that this was consequently illegal.
A key point revolved around the liability of the search engine in respect of the control they maintained on the results being provided for a particular search. Google, for instance, will provide a list of results that reflects the amount the advertiser has paid i.e. the more you pay, the higher up the list you are placed. While the court found that this did not deprive them from exemption to the liability, it did take issue with the commercial message describing the site, as Google had a part in compiling these.
Ultimately, it must be proven that the search engine provider had to have knowledge that the advertiser was acting unlawfully. If so, and they had not then taken steps to remove the data being stored, there could be liability.
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