Yesterday (in the USA) Google’s new trade mark policy and complaint procedure came into force.
All the details here.
Australia is still in the regions where both text and keywords are monitored.
Lid dip @TrademarkBlog (aka Marty Schwimmer)
Well, strictly speaking, the 2nd Circuit in the USA has held that Google’s sale of keywords may be use in commerce.
Rescuecom had sued Google for trademark infringement by selling advertisements (sponsored links) triggered by Rescuecom’s trademark. The District Court had dismissed the claim on the grounds that Google’s conduct was not use in commerce. So now it goes back to the District Court.
Of course, Google’s conduct, if were done in Australia or transacted with a business located in Australia, would be in trade or commerce for the purposes of the Trade Practices Act. In context, however, the nearest analogue under our law is whether or not the conduct might be “use as a trade mark” (in the sense of using the sign in the course of trade) for the purposes of s 120 of the Trade Marks Act.
Professor Goldman considers the ramifications under US law (and the distinguishing of WhenU) here.
Prof. Gans over at CoreEcon takes issue with Eric Clemons’ paper in which Prof. Clemons appears to be arguing that Google’s business model – using sponsored links and paid advertising triggered by keywords and the like – is based on misdirection.
Now, if Prof. Clemons were right, that could be a reason for contending that the use of trade marks in keywords etc. is (at least) misleading or deceptive conduct. But, as noted, Prof. Gans puts a very big question mark over this.
Now, neither of the Professors is dealing with the legal arguments, but I do wonder why people would click on (keep clicking on) Google’s sponsored links on the scale which they apparently do if the sponsored links etc. were in fact misdirecting them.
Whatever happened to the case which the ACCC brought against Google here?
IPKat overlooks the work in progress in the EU here.
