Intellectual Property -Protecting Your Trademarks In The Digital Age

29/01/2010

By David Wood

Intellectual Property, (IP) rights foster creativity and innovation online enable firms and individuals to enjoy the commercial fruits of their efforts and investments and protect consumers from deceptive practices.

Organisations that weaken the control that rights holders have over how their IP is used online, particular if achieved through the use of market power in online search, are likely to come under increasing pressure, from both government and the courts. The future Rights Agency may also be given a role, and the power, to take on digital 'pirates'.

One example of this, the Google vs. LVMH case, is instructional because Google's sheer size and market dominance leaves many large brands feeling powerless on this issue - they have no choice but to advertise using Google's search engine. Google's advertising rules have meant that rival companies (or even fraudulent providers) can potentially cash in on well known and protected trademarks and brand names.

This case and the issues it raises have resonated greatly with ICOMP's members as it appears to be another example of Google benefitting commercially from using other peoples' content without their permission. It is difficult to see how this kind of activity would be possible if Google did not enjoy such a strong position in relation to search and online advertising.

Many brand owners are particularly aggrieved that they have to enter into bidding contests to keep their trademarks out of the hands of advertisers who are using them to sell other brands or counterfeits. Greater protection of trademarks online should mean that brand owners will have more choice as to where they place their ad spend.

Back in 2008, a French court ordered eBay, the online auction site to pay €40 million (£31 million) in damages to LVMH for allowing the sale of counterfeit luxury goods online, causing damage to the LMVH's brand equity and causing what was termed as "moral harm". The commercial court ruled in favour of six LVMH brands that had accused eBay of putting on sale various items such as handbags, clothes, perfumes and other luxury goods.

Back in September last year it emerged that following Google's appeal against decisions in the French courts in favour of LVMHs, EU Advocate General Poiares Maduro offered limited support to Google, saying that "Google has not infringed trademark rights by allowing advertisers to buy keywords corresponding to registered trademarks," in an opinion that is influential but not binding on Europe's courts. The opinion did not though offer unqualified support to Google and has been criticised in many quarters.

The Google vs. LVMH case is not the first example of the search company's clash with major advertisers: Lastminute.com and Channel 4 both issued warnings to Google that it could be faced with legal action over the way it sells advertising.

There is, rightly, a debate about the extent to which the rights of intellectual property owners need to take into account the legitimate interests of users, particularly with respect to user generated content and user created content, and the research community. This is very different to a debate about what to do about online businesses which take content belong to others and without permission use that content to further their own commercial aims.