Thursday, 25 March 2010

Shameless Plug & Follow-up

A shameless plug for the blog post which I wrote for Latitude earlier this week, Google off the hook, but is anyone else left on it? following the judgement from the ECJ on the 3 Google Adwords cases referred to it from the French courts.  Please click on the link, because if I'm the employee with the most clicks on  the Latitude blog this month I could win the monthly blogging competition :-)

Plug over.

Now for the follow-up:

Obviously this isn't the result which trademark proprietors were hoping for, and since writing that post I've seen a number of reports in the blogosphere suggesting that enforcement costs for protecting brands online will rocket (see in particular this post from World Trademark Review).  We'll just have to wait and see if the price per click of branded keywords does increase, but I think to say that the costs of enforcement will rocket is perhaps a knee-jerk reaction because:

(a)  What this judgement does is further clarify what type of activity does and doesn't constitute trademark infringement, and clarity can only be a good thing for all parties concerned, and so there should be, per se, less infringement.  When we have the ruling in M&S v Interflora, we'll have even more clarity.

(b) Doubtless there will be some advertisers who take advantge of the ruling, but likewise there will be those who don't.  For instance, in terms of online advertising, some sectors are more sensitive to searches against generic keywords rather than branded keywords (eg "car insurance").  Indeed, individual advertisers also take their own ethical stance in whether or not they use competitor's trademarked terms as keywords in their own advertising campaigns.

(c) What trademark owners should consider are the other ways in which they can boost their online presence, such as through improved content (price per click is not the only factor which affects the placement of a sponsored ad) and organic search results.

Lots of analysis and views to digest still, I particularly enjoyed reading Eric Goldman's analysis of the ruling Google gets favourable ECJ opinion, but will it prove a hollow victory? and IPKat's summary of comments on the 3 cases.

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