NANTERRE COURT
TRIBUNAL DE GRANDE INSTANCE DE NANTERRE
Emergency Order, December 16, 2004
Hotels Méridien v. Google France
Keywords: keywords, referencing, advertising announcements, sponsored links, commercial links, trademark, counterfeiting, deletion (yes)
Note: This decision may be subject to appeal
Click here to download the entire decision [PDF]
Click here to read a commentary by Olivier Hugot & Jean-Philippe Hugot
Extract:
Translated by Emanuela Catichi, Attorney at law at the Bucarest Bar (Latournerie Wolfrom & Associés) with the assistance of Frédéric Sardain, Attorney at law at the Paris Bar (Latournerie Wolfrom & Associés)
“(…) Whereas the paying referencing system called “Adwords”, offered by GOOGLE FRANCE company, is based on a close correlation between [on one hand] the keywords chosen by an advertiser for causing the publication of its announcement and [on the other hand] the request of the user of the searching engine; that therefore, since a commercial link appears, this implies that the advertiser chose as keyword at least one of the words constituting the request;
That, even if it defends itself in this respect, GOOGLE FRANCE obviously have an active role in the choices made by the advertiser; that, for example, in the chapter “suggestion tools” of its program of creation of an “Adwords” commercial link, it suggests to add additional keywords in order to “facilitate the improvement of the announcement pertinence ”;
That in this way it proposes a list of “specific keywords”, encouraging, in the following terms, the client to choose them:
“In order to increase your clicktrough rate, think about replacing the generic keywords with more precise keywords, which seem pertinent to you, as [they are] presented hereinafter”
That, in the same time, the proposed list is presented in the “advanced function” as follows :
“Your ads may afterwards be automatically publicized for these additional requests”;
That the limitation of liability clause reminding to the advertiser that is liable of the selected keywords is not sufficient to discharge GOOGLE FRANCE company of its liability toward third parties;
Whereas the user of the searching engine who, by formulating a request using the trademarks “méridien” or “le méridien”, search the services covered by such trademarks and find a commercial link to another offer concerning identical services or similar services, risks to consider [them as having] the same origin;
Whereas, consequently, the use by GOOGLE FRANCE company of a third party’s trademark, through the request of the user, for making the advertising of a product aimed by this trademark, is likely to fall under the interdictions provided by the articles L. 713-2 and L. 713-3 of the Intellectual Property Code;
That the serious character of the action on the merit brought by SOCIETE DES HOTELS MERIDIEN is therefore undeniable;
That, consequently, it is well founded to seek injunctive relief on the grounds of the Article L. 716-6 of the Intellectual Property Code and to request provisory measures destined to prevent violation of its rights;
Whereas GOOGLE FRANCE company has done valuable efforts to satisfy the requests of SOCIETE DES HOTELS MERIDIEN; that nevertheless there are still problems and serious doubts on the stability of the measures taken for the respect of protected trademarks; that it is consequently suitable to partially admit, in expectation of the decision on the merit of the case, the claimed measures, within the conditions set forth in the judgement. (...)”
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