LVMH enters into agreement with Google, but does it go far enough?

I’ve had some dealings with Google and how it deals with customer trademarks. Google’s basic policy was that a trademark, or a recognizable variation of it, could not appear in an Adword display or paid search results. So if a user input “Ford Mustang” a Google display ad would not “Just like Ford Mustang” and advertise something else. Or a client I had that had its share of legal problems. If one searched that name, it would serve up a list of lawyers in the AdWords section that had the client’s trademarked name in the ad. Google would take that down.

Today, LVMH and Google announced an agreement where LVMH could get Google to suppress search results that serve up counterfeit LVMH products. Bloomberg reports on it here. The terms of the settlement are not discussed, but it appears that this will suppress results when a user searches for, say, a Louis Vuitton handbag, Google won’t display “Just Like Louis Vuitton” handbags in the results. From what little I can find, LVMH will have to do its own policing and tell Google about it.

But this settlement does not seem to settle a more insidious problem. Google can sell, and has sold, trademarks as keywords to competitors. One of the more famous cases, which settled confidentially, was a lawsuit brought by American Airlines. American was made because users searching on Google for its airline would receive paid ads for other airlines and travel agencies. Why? Because Google was allowing these competitors to buy the term “American Airlines” as a keyword phrase. American Airlines was not pleased. Bloomberg describes the litigation and settlement here.

In a different article Google states that it did not make any special concessions related to keyword “sponsored ads.” But, magically, if you type American Airlines into a Google search bar, there are no sponsored ads and the American Airlines website appears at the top. It’s a miracle!

On the other hand, if you’re a small mom-and-pop company without the legions of resources of American (despite its bankruptcy), you’re hosed. Google, when I last dealt with the company, believes that it can sell trademarks as keywords to its heart’s content. That is, of course, it gets sued by a company with nearly bottomless pockets. Frankly, I don’t think Google’s policy was correct when I dealt with the company before and, if that policy is still in place, it seems unfair to me now. If a company goes to the trouble of protecting its trademark, why should a search engine make money selling that trademark as a keyword? The search engine couldn’t stick the name “Apple” on a phone and sell it. But it can sell the phrase “Apple computer” and serve up related results. Although, it seems, Apple has worked around this because I just did a Google search and the only thing that came up was the Apple website.

The law is trying to keep up with the technology. But sometimes, it just can’t. We need our government to step in and stop search engines from selling trademarks as keywords. Trademarks are not theirs to sell.

That’s the view of one lawyer from Jupiter, Palm Beach County, Florida. I’m Marc Dobin.

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