Below is an extract from a news alert issued by the European Court of Justice. The case in question is due to be heard next week (Thursday 26th).
Hearing in Case C-558/08 Portakabin v Primakabin
In this particular case Portakabin have sued a competitor, Primakabin, for having purchased "Portakabin" and a number of variants of that word, as adwords in a number of internet search engines, so that a person searching for that word would be shown adverts directing them to Primakabin's site. Portakabin claims that such use infringes their rights as trademark owner of the word "Portakabin".
The Dutch Supreme Court (the Hoge Raad), now hearing the case, has decided to refer a number of questions to the Court of Justice on the matter.
Should be interesting.
Incidentally, the European Advocate General has already given his opinion on this:
In this context, the Advocate General finds that both Google's search engine and AdWords constitute information society services. He adds that service providers seeking to benefit from a liability exemption under the E-Commerce Directive should remain neutral as regards the information they carry or host.
However, whilst the search engine is a neutral information vehicle applying objective criteria in order to generate the most relevant sites to the keywords entered, that is not the case with Adwords where Google has a direct pecuniary interest in internet users clicking on the ads' links.
Accordingly, the liability exemption for hosts provided for in the E-Commerce Directive should not apply to the content featured in AdWords.