Intellectual Property Law Issues - Essay Example

? Intellectual Property Law INTELLECTUAL PROPERTY LAW The ECJ, on March 23 of ruled in Google’s favor in its court battle with Louis Vuitton concerning Google’s use of Louis Vuitton’s trademarked brand names in their ad searches. The ECJ, however, added that companies using brand keywords that were trademarked so as to push sales needed more transparency as to whom the seller is (Bottletree, 2011: p23). LV had argued that Google acted illegally in allowing other entities to bid for and utilize as key words its brand names, when triggering ads on their websites. The case was viewed as critical to the search engine’s business model that had been built around the system. The ECJ also added that the Cour de Cassation, France’s highest court would have finality on other cases, case-by-case. The court also contended that its decision on whether the search engine company was liable over stored client data should be left in the hands of the French courts (Hill, 2012: p19). Google, it said, could not be held liable if at all it possessed a neutral role that was passive, automatic, and technical, pointing to a lack of data control or knowledge (Smith, 2012: p72). Previously, Google used to stop advertisers from buying the brand names of others as keywords, although, this policy was altered in 2004 for the North American market before the extension into Ireland and Britain four years later. An interim legal opinion in September of 2009 delivered by the European Court of Justice contended that Google had not infringed on any trademark laws or rights, via allowing the buying of keywords by advertisers in correspondence to registered trademarks. Several trademark lawyers, such as Fiona McBride of Withers & Rogers, described the European Court of Justice’s ruling with regards to an ad’s origin as perplexing (Stim, 2010: p34). Apparently, it seemed to be introducing, unnecessarily, a requirement of doubt or element pertaining to a product’s origin, which had no relevance in the determination of a registered trademark infringement. The ruling was seen as a setback for owners of various brands since it acted to limit the scope of trademark laws and rights when it came to putting up challenges pertaining to the use of their brands’ trademarks in advertising over the internet (Weller & Lori, 2012: p44). Consequently, very rarely will users of the internet be able to ascertain that his or her services or goods’ origin, as well as making it easier for advertisers to navigate the law and utilize trademarks from third parties as key words (Wherry, 2012: p77). This translates to advertisers being able to secure commercial advantages by taking a piggy ride on other trademark’s reputations. This paper seeks a critical evaluation of the development of the trademark infringement law in relation to ad-words, as well as the implications of the European Union Court of Justice’s ruling pertaining to the use of key words in advertising over the internet (Wild, 2011: p22). Development of the Law in Trade Mark Infringement relating to ‘Ad-words’ As the analysis of the Louis Vuitton vs. Google Inc. above has indicated, trademarks are valuable assets to top corporations. In cases where these trademarks are exploited correctly, they endow their proprietors with increased benefits, distinctiveness, and fame (Bainbridge, 1999: p45). Therefore, the respective proprietors of these trademark rights, via contemplation of their significance and value, as well as devotion of material efforts towards their evolution in the future, can invest vast sums in attempts to protect them. During the past decade, proprietors of various trademarks have begun to turn their attention to violation of their trademarks that are occurring over the internet. The internet has shown a tremendous rate of growth over the past decade, which has led to new economic models developing, as well as novel methods of advertising (Colston & Galloway, 2010: p45). The internet has made, within the context of a new economic environment for companies and individual consumers, to trade freely. The internet, by its development and creation of new advertising and business systems, has begun to push the previously established boundaries of law, such as those within the framework of trademark protection, as well as other intellectual property rights (Elias & Richaird, 2010: p22). Legislators have found it increasingly difficult, same as the courts, to stay in step with development of the internet, as well as in the identification of new types of infringements on intellectual property rights. However, specific decisions in the recent past by the European Court of Justice are a clear demonstration that there is a willingness to take on these trademark law issues (Ferrera, 2011: p55). The case between Louis Vuitton and Google Inc. and its analysis has attempted to shed light on current concerns and issues in relation to trademark right infringements, which occur online in a European context. Both advertising using keywords via the use of sponsored links, as well as trading via online auction sites and marketplaces, make up two vital economic systems or tools developed via the use, as well as evolution, of the internet (Harrison et al., 2012: p34). Their operation and function currently causes various issues and concerns in relation to possible trademark infringement. This explains why the decisions by the European Court of Justice in the Google Ad-words’ case and the L’Oreal vs. eBay case are highly significant and have been welcomed after much anticipation (Ferrera, 2012: p41). The two cases, with the Louis Vuitton vs. Google Inc. case examined in this essay, were awaited by many in an attempt to shed light and give guidance on the contemporary trademark issues related to the internet. The L’Oreal vs. eBay case, as compared to the Louis Vuitton vs. Google case, is the successful case in relation to the impact. The case determined that a number of factors could be used to provide further guidance in cases brought forward in the future with regards to trademark rights’ infringement over the internet, for instance, on eBay (Cohen et al., 2012: p61). Additionally, it clarified instances whereby the operator of these online marketplaces could be held liable. The Google case, on the other hand, was less straightforward, since it left it up to national courts to make a decision on the merits of each case, as well as the circumstances giving rise to liability of the search engine in cases involving violation of trademarks via sponsored links and keyword advertising. In any case, the national courts have the responsibility to apply these guidelines correctly as provided by the two rulings. Only when these two rulings are applied uniformly will the law in this area be consistently developed (Jolly, 2012: p61). Implications of the Judgment of the Court of Justice of the European Union relating to the Use of Keywords in On-Line Advertising Apart from possibly developing a uniform application of relevant laws, the mentioned ECJ cases have managed, at a great degree, to balance trademark proprietors and search engine operator rights, as well as those of the electronic marketplace operators (Kalisch, 2011: p127). A review of these cases facilitates a better comprehension of the position that trademark operators or proprietors hold. The ECJ’s ruling in the case between L’Oreal and eBay is enough to give clarity and enlighten electronic marketplace operators, regarding the dangers of being held liable for infringement of trademark occurring via the sites they run. It will also urge them to have better control over their sites or take measures to protect themselves from violations of trademark laws (Kolah, 2012: p103). The two cases can be used to provide significant guidance in regard to the whole function and use of internet advertising, especially as regards advertisers (Wright & Jane, 2011: p101). Majority of advertisers are now aware that they are still able to use trademarked keywords that belong to third parties, but should ascertain that there is no possible confusion to consumers regarding their advertisement (Michaels, 2010: p231). In addition, traders have been warned on the dangers of counterfeit goods. The two cases constitute vital developments for their field of law within the European Union and can be used as an indicator of contemporary trends. The internet, maybe, is making for a more level playing field where trading of services and products is free. However, free is not to be confused with unlimited. The rulings, moreover, point to the fact that infringement of trademarks on the internet is not tolerable, especially where they can be detected (National Research Council [E-U], 2011: p298). The cases are also indicative of the determination and willingness of the European Court of Justice and the member state national courts to stay up to date with internet developments, as well as to assess these developments from a legal perspective (Norman, 2010: p51). This is already a difficult task for the courts and legislators to perform, therefore, any type of jurisprudence is always anticipated and welcome not just from the legal perspective, but from corporations and business undertakings. However, it is bold to make a suggestion that the law in this field is totally clarified because of the rulings made by the European Court of Justice pertaining the two cases (Packard, 2012: p40). More cases should follow before an established legal line pertaining to issues regarding infringement of trademarks that occur through either online marketplaces or ad-word advertising. Taking into consideration the fact that intellectual property boundaries, as well as trademark laws, are continuously shifting, the laws are also set to evolve (Scott, 2010: p61) In fact, future rulings may take a different route compared to these two and could take the argument in a different direction. References Bainbridge, David, 1999. Cases and materials in intellectual property law. Upper Saddle River: Financial Times. Bottletree Books, 2011. Google advertising guerrilla tactics. Collierville: Bottletree Books. Colston, Catherine & Galloway, Jonathan, 2011. Modern Intellectual Property Law. Boca Raton: Taylor & Francis. Cohen, Jehoram, & Constantinus Clemens van Nispen, & J L R A Huydecoper. 2010. European trademark law: community trademark law and harmonized national trademark law. Austin : Frederick Aspen Publishers. Elias, Stephen. & Richard, Stim, 2010. Trademark : legal care for your business & product name. Berkeley : Nolo. Ferrera, Gerald, 2011. Cyberlaw. Mason: South-Western Cengage Learning. Ferrera, Gerald, 2012. Cyberlaw : text and cases. Mason : South-Western Cengage Learning. Harrison, Suzanne, Patrick, Sullivan, & Julie, Davis, (2012). Edison in the boardroom revisited : how leading companies realize value from their intellectual assets. Hoboken : Wiley Hill, Brad, 2012. Building your business with Google for dummies. Hoboken : Wiley Publishing. Jolly, Adam, 2012. The handbook of European intellectual property management. London : Kogan Page. Kalisch, Daniel, 2011. Sponsored Links and Trademark Infringement: Primary Liability of the ISP Under the EU Trademark Directive. Munich: GRIN Verlag. Kolah, Ardi, 2012. Essential law for marketers. London : Kogan Page. Michaels, Amanda, 2010. A practical approach to trade mark law. Oxford : Oxford University Press. National Research Council (E?.-U.)., 2010. Signposts in cyberspace : the Domain Name System and internet navigation. Washington : National Academies Press. Norman, Helen, 2010. Intellectual property law. Oxford : Oxford University Press Packard, Ashley, 2012. Digital media law. Malden : John Wiley & Sons, Inc. Scott, Michael, 2010. Scott on information technology law. Frederick : Wolters Kluwer Law & Business. Smith, Graham, 2012. Internet law and regulation. London : Sweet & Maxwell. Stim, Richard, 2010. Patent, copyright & trademark. Berkeley : Nolo. Weller, Bart & Lori, Calcott, 2012. The definitive guide to Google AdWords : create versatile and powerful marketing and advertising campaigns. New York: Apress Wherry, Timothy, 2012. Intellectual property : everything the digital-age librarian needs to know. Chicago : American Library Association Wild, Charles, 2011. Electronic and mobile commerce law : an analysis of trade, finance, media and cybercrime in the digital age. Hatfield : University of Hertfordshire Press. Wright, Benjamin & Jane, Winn, 2011. The law of electronic commerce. Gaithersburg : Aspen Publishers. Read More