For the last three years, Google has allowed brands to bid for the right to use their rivals’ trade marks as links to their own sites. But will the London 2012 organisers tolerate non official sponsors bidding for protected Games brands as links? Manana Shrimpling asks if bidders should be feeling lucky.
Topic: Brands
Who: London Organising Committee of the Olympic Games (LOCOG)
Where: London
When: May 2011
Law as stated at: 31 May 2011
What happened:
It has been reported that LOCOG intends to crack down on brands that breach its online advertising restrictions. This includes on those bidding against trademark terms such as "London 2012", "Olympic" and "Paralympic" on Google.
Google's policy allows rival brands to buy trademark terms, which means that competitor brands will be able to bid against these terms unless Google changes its current trademark policy. However, LOCOG heavily restricts the use of these terms in any marketing by anyone other than its commercial partners, which include Coca-Cola, McDonald's and Visa.
Google AdWords
Google Inc operates a system called AdWords through which advertisers can pay Google to have their advertisements displayed within the Google search engine when an internet user inputs selected keywords as search terms. Google makes 95% of its revenue through this advertising service. Typically the sponsored links comprise a short commercial message and a link to the advertiser's website. They are distinguishable from the natural search results by their format and placement.
As a strategy, some businesses select prominent company and brand names in their market as keywords to increase traffic to and sales through their websites. Since many of these company and brand names are trademarks, this has led to a number of claims of trademark infringement in jurisdictions around the European Community.
CJEU's approach
The CJEU has held that:
- the operation of the AdWords system by Google to allow third parties to use keywords which are identical or similar to trademarks does not amount to trademark infringement by Google, but
- the use of trade marks as keywords by businesses is infringing use if the content of the sponsored link does not enable the average internet user to easily ascertain whether or not the goods or services being advertised are those of the trademark owner or the advertiser.
Earlier this year the Advocate General delivered an opinion in Interflora v Marks & Spencer that if a mark enjoys a reputation in the Community and a third party uses it as a keyword for the same services or goods as those for which it is registered, the trade mark proprietor should be able to prohibit such use under Article 5(2) of the Trade Marks Directive if the resulting sponsored advertisement mentions or displays the trade mark and either uses the trade mark as a generic term for a class of goods or services, or seeks to benefit from its power of attraction, its reputation or its prestige.
Why this matters:
LOCOG has not yet announced its formal online advertising policy in relation to the 2012 Games. It will be interesting to see how any such policy interacts with and takes account of the Google AdWords jurisprudence to date, as well as the extent to which LOCOG will seek to enforce it, including in respect of marketing activities outside the UK. LOCOG has acknowledged that there are challenges with international enforcement where social networking is involved, for example.
Given LOCOG's expression that it will take a tough stance, advertisers and businesses will need to be careful if they wish to consider Adwords bids on Olympic expressions and should take advice before going down that road.
