An adviser to the European Court of Justice says the use of a competitor's trademark as a keyword by companies advertising on Google doesn't violate trademark law, but added they should be liable for their wrongful use.

Google is currently in litigation over its AdWords business model in countries including England, France and Germany says the Dow Jones Newswire.

The issue is whether Google's AdWords program, an advertising model that allows companies to to target search users based on keywords the user types, as to whether a company can pay Google to use a competitors trademark as a keyword, which may direct customers of the competitor to their site.

"Google has not infringed trademark rights by allowing advertisers to buy keywords corresponding to registered trademarks," says Advocate General Poiares Maduro in whose opinion was prepared for the French Cour de Cassation. However, they may be liable for featuring content that directly violating trademarks.

The Cour de Cassation is asking the European Court of Justice, ECJ, for a ruling on the trademark issue concerning an ongoing case. If the ECJ follows Maduro's opinion, this "will be a major defeat for brand owners and would mark victory in Europe for Google's AdWords business," says trademark attorney Adrian Heath-Saunders of the law firm Wedlake Bell.

Google's Senior Litigation Counsel, Harjinder Obhi, said they "believe that selecting a keyword to trigger the display of an ad does not amount to trademark infringement, and that consumers benefit from seeing more relevant information rather than less."

Maduro said however, that Google should still be considered liable for the wrongful use of keywords, the burden of proof being with the trademark owners. Luxury goods giant, LVMH, one of the companies that has made complaints that Google infringed on their trademark rights, said the opinion "it is not the court's final ruling."

The LVMH spokeswoman added that the opinion shows that Google is responsible for the keywords on their advertising platform, and can therefore be held responsible for selling keywords that violate trademarks. Infringements include using a trademark for selling counterfeit goods, and trying to confuse the consumer by using a trademark that is very similar to a known brand.

Published in The Christian Law Journal