Lack of clarity

By Matthew Broersma  |  Posted 2005-02-14 Print this article Print

However, for the time being there is little consistency or clarity on how trademark law affects search engines—in spite of the fact that United States and European trademark law are very similar, according to analysts.
"There is a lot of confusion about what Internet companies can and cant do," said Lee Curtis, a trademark attorney with London-based Pinsent Masons. "For the next couple of years people are going to have to look at each case as it comes up. Until theres a broad wealth of case law experience, no one is going to be able to draw out general principles globally. In theory all countries should slowly fall into line with each other."
The confusion is partly due to different facts in each of the cases, attorneys say. For example, the judge ruled that GEICO hadnt proved its case, while Louis Vuittons case was based on specific examples of sites selling Vuitton fakes. Googles profit soars on ad sales. Read about it here. The court found that companies had used Googles advertising service to associate terms such as "imitation," "replica," "fake," "copies" and "knock-offs" with terms such as "Louis Vuitton" and "Vuitton" to give their own sites as much prominence on Google as the official site. These competing sites not only dont have commercial links with Louis Vuitton Malletier but actually used the Vuitton trademark to sell products "inspired by" Vuitton products, the court said. This caused consumer confusion, according to the court. Another issue is that judges find it difficult to understand systems such as AdWords, and therefore apply legal reasoning in different ways, Hugot said. "It is normal that at first decisions will be contradictory," he said. Besides technical issues, different judges may decide to give trademarks different levels of protection, he said. Recent decisions are still open to appeal, attorneys noted. Google may challenge the Vuitton case, which was from a relatively low court—it could still head to appeals court and then the French Supreme Court. The Le Meridien case was a preliminary relief, meaning that the case wasnt decided on its merits. However, a judgment on the merits is expected soon, and such relief is granted only if the court finds serious grounds to believe that the plaintiff will prevail. "[The decisions] are not authoritative, and there is no binding precedent in France. A decision from a court of appeal has more weight, and once the Supreme Court has ruled, the law is set," he said. It is also possible that the European Court of Justice could be asked for a ruling by France or one of the other European Union member states, Chaudri added. While differences remain, Internet companies will have to deal with the fact that plaintiffs can take their case to any forum that they believe will favor them, and which believes it has jurisdiction. French courts consider that if a site is available from France, the court has jurisdiction, Hugot noted. There is little Internet companies can do but deal with legal problems as they arise and lobby for international agreements or safe harbor provisions, analysts said. "Companies like Google or Yahoo just have to cope with it the best they can," Hugot said. "International companies should not rely on courts to hand out decisions that are coherent with other countries legal systems." Check out eWEEK.coms for the latest news, views and analysis on enterprise search technology.


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