Google Adwords - Use of competitor’s adword prohibited in The Netherlands

Following the European Court of Justice’s decision in the Louis Vuitton case, Google has changed her Adwords policy. It is now possible for a company to buy their competition’s trademark as an Adword for the promotion of their own website. Google believes this is allowed, but is this really so? The first court decisions on Google Adwords seem to indicate it is not. In both Denmark and the Netherlands the courts have decided that you are not allowed to use someone else’s trademark as an Adword.

The Dutch case centered around the admissibility of the use of the Adword TEMPUR by competitor Energy+. TEMPUR sells special matrices and pillows made of a particular Styrofoam. Energy+ sells these type of matrices as well and tried to lead traffic to her website by using TEMPUR as a metatag on some of her web pages, as well as using TEMPUR as an Adword. The court decided the case on the basis of comparative advertising. Since Energy+’s ads did not adhere to the strict European regulations on comparative advertising, Energy+ was acting unlawfully. Comparative advertising is only allowed when the products involved (in this case TEMPUR and Energy+) are directly and clearly compared. Of course, that cannot be the case in a Google advertisement. Energy+ was prohibited to further make use of the Adword TEMPUR and was ordered to pay damages of € 9,500.-

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?