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.

AdWords, Links & a Ticking Clock

I’ve been expecting 2010 to be a busy year for developments with the pending litigations relating to online infringement of brands when used as keywords to deliver sponsored search results, and yesterday I posted a blog for Latitude about it.  The purpose of that post was to bring non-lawyers up to speed with the topic but do feel free to comment there on any of the legal implications of these cases should the mood take you.  Meanwhile, here are a few useful legal links on the subject for the lawyers amongst you:

Eric Goldman’s Technology & Marketing Law Blog continues to be a first class source of updates on the US Google Adwords litigation; he is meticulously in backing up his blogs with a raft of legal sources and links and his comments are insightful both in terms of the legal ramifications and also in terms of well-spotted human-error and oddities (see his commentary on the Flowbee litigation linked below for a case in point).

Eric has recently blogged on the decision by Rescue.com to drop its lawsuit against Google (seemingly because of the duplicitous position which the plaintiff found itself in by arguing both sides of the coin in parallel lawsuits, and also because of the sheer length of time the dispute has now been dragging on for), the Jurin case (in which the keyword seller v advertising seller argument surfaces), and the transfer of the Flowbee litigation (by invoking the venue selection/governing jurisdiction provisions in its Adwords contract); and on top of all of that he also helpfully maintains a running record of all Adwords cases on the books in the US.

Moving to Europe, back in September 2009 the Attorney General gave his opinion on the 3 French Google Adwords cases which had been referred to the ECJ for judgement. The AG comes down on the side of the search-engines, a position which some commentators have referred to as a mistake, so we will have to wait and see how the ECJ ultimately rules. In addition, we’re expecting judgement on Interflora v M&S and L’Oreal v eBay from the ECJ. We are tantalisingly promised opinions in “early 2010”....tick tock tick tock...

Your Google Needs You!

Google is recruiting. It needs in-house counsel, and lots of them. Fast! Just look at this selection of in-house legal jobs currently available at Mountain View, Google UK, and Google Zurich.

The reason for this recruitment drive? Well, not only does Google have the day-to-day legal demands of any international business its size (are there any others?), its also facing legal challenges left, right and centre. Here’s a quick run-down of some of the more high-profile ones:

1. Digital Books
Google is seeking to build the world’s biggest online library by digitising millions of out-of-print books. This move has come up against much criticism concerned with breach of copyright (resulting in many authors opting out of the proposed settlement), potential invasion of privacy (the project has the potential to make user’s personal data and online habits public) and unfair competition (is Google obtaining a monopoly on the world’s information?). The “fairness hearing”, as it is being referred to, had its day in court last week and Judge Chin has expressed his concerns but made clear that there will not be an immediate ruling.

2. Personal liability of 3 Google Execs in Italy
In Italy 3 Google executives have been convicted of invasion of privacy as a result of a short film being uploaded onto Google Video which showed a 17 year old boy with Down’s Syndrome being bullied by 4 other children. Although Google removed the video in less than 24 hours of receiving complaints after it had been uploaded, this was not enough for the Italian Court, whose position was that Google should never have allowed the video to reach the internet in the first place.

It’s a concerning precedent on two counts. Firstly, in terms of exposure to liability of executives working at content providers and potentially other platform or service providers. Secondly, in terms of the potential changes to process required for those content, platform and service providers to pre-screen content to minimise this new risk.

More on this story can be found on BBC, Google’s reaction and Peter Fleischer’s view (one of the Google executive’s in question) .

3. Potential EC Competition Investigation
The European commission has received 3 complaints (from price comparison site Foundem, French legal search engine ejustice.fr, and Microsoft's Ciao) that Google’s online search and digital advertising activity is potentially anti-competitive. Copies of the complaints are not available but according to The Guardian “The complaints centre on the way in which Google's search results are compiled and on the terms and conditions the company attaches to deals with advertisers.”

The EC has issued a statement advising that it has not opened a formal investigation but that it has asked Google to comment on the complaints. Google states it is “committed to competing fairly”, but with such a strong hold in the market-place and so much at stake, I suspect its in-house legal team will be pouring over the detail of the complaints and the company’s response with a fine tooth-comb to stave off a full investigation by the EC.

4. Buzz Off
The controversial social networking tool attaching to Google’s email brought with it a host of privacy concerns, Channel Webb documents them well. Google responded promptly to the criticisms and concerns, but was it too late? In the US, the Electronic Privacy Information Centre has urged the Federal Trade Commission to open an investigation into Buzz with a detailed complaint which seeks to:

• Compel Google to make Google Buzz a fully opt-in service for Gmail users
• Compel Google to cease using Gmail users’ private address book contacts to compile social networking lists
• Compel Google to give Google Buzz users more control over their information, by allowing users to accept or reject followers from the outset
• Provide such other relief as the Commission finds necessary and appropriate

5. Streetview
After successfully fighting off Mr & Mrs Boring who issued a federal claim against Google in relation to Streetview invading their privacy (see Eric Goldman’s summary) in the US, the Google lawyer assigned to Streetview is now having to fight a battle in Europe. Strong objections by the German government have been voiced by Germany’s Consumer Protection Minister (comments here) who is looking for Google to potentially obtain the consent of each and every person photographed on Stretview before uploading their image or other identifying locational data onto the service.

6. Alleged Search Patent Infringement
Hot off the press this morning, we hear that Xerox is alleging that Google’s search algorithms allegedly infringe its patents. Yahoo is also on the receiving end of the allegation and breaks the news here.

7. Adwords
And we haven’t even started on the long list of Adwords lawsuits lining up. Expertly summarised on Eric Goldman’s blog.

And that’s only the legal news in the public domain. Interesting times for GOOG’s in-house counsel.