France's eBay ruling is a distraction ðÐit's next month's AdWords decision that counts

OPINION: A Paris court ruled last week that eBay infringed thetrade marks of Louis Vuitton by sponsoring misspellings of itsbrand as search engine keywords. But speculation about the impactof the ruling is pointless: the big decision comes next month.

On 23rd March, Europe's highest court is set to rule on a suiteof cases that involve AdWords, Google's keyword advertisingservice. Brand owners, including Louis Vuitton's owner, arefighting Google France in three separate actions, each arguing thattheir trade mark rights are infringed when other businesses usetheir names as triggers for adverts.

The ruling of a district court in Paris is far less importantthan what's coming, but it has taken some US observers bysurprise.

"Apparently, in France, you're not even allowed to misspell atrademarked brand name without official permission," blogged AshbyJones at the . "Would this be the case in theUS?"

No, it probably wouldn't be the case in the US. Courts in the UShave said, in most cases, that you can sponsor another company'sbrand name as a keyword in Google AdWords. In Europe, trade marklaw is different, so the eBay ruling comes as less of a surprise.Brand owners are waiting for the EU's highest court to give a clearview on how trade mark law applies to AdWords disputes.

Last week's result focused on eBay's sponsorship of misspellingsof the Louis Vuitton brand in Yahoo! and Google, including 'LouisViton' and 'Wuiton'. Brand owner LVMH Moët Hennessy Louis VuittonSA, better known as LVMH, sued for trade mark infringement.

LVMH sought €1.2 million and won a more modest €200,000 indamages plus €30,000 in costs. EBay also faces a fine of €1,000 foreach future violation. According to reports (we haven't seen thefull judgment yet), the court found that LVMH had harmed "thereputation of Louis Vuitton trade marks, the company name and thedomain name."

The case is complicated by arguments over the sale ofcounterfeit goods at eBay's site. That is a different argument,though it's still about trade marks. A , a and even have backed the auction site on the issue of counterfeits, more orless in line with a .More recently,  on that point went against eBay.

from the UK counterfeit case have beenreferred to the Court of Justice of the EU, and they touch onkeyword sponsorship. But we won't hear the answers to thosequestions for a while. In the meantime all attention is focused onthe forthcoming judgment.

An advisor to the judges has already given on the questions raised in these three cases,which will be answered in a single ruling. An Advocate General'sopinion is the forerunner to the full judgment of the Court and theCourt usually but does not always follow the opinion.

Broadly speaking, the Advocate General supports an open marketfor keywords. Perhaps unsurprisingly, that approach is more popularthan an alternative that gives owners of global brands a high levelof control over how others can use those brands.

The Advocate General was concerned that the scope of trademarkprotection was being expanded and he expressed a generalnervousness about how the internet will develop.

But enforcing trade mark exclusivity against a trader (Google)which is using and letting other businesses use trade marks withoutthe permission of the trade mark owner does not expand the scope oftrade mark protection at all. It merely presents a greatopportunity for the court to re-state established trademark law inthe context of a new advertising model.

The advocate general also suggested that there was no confusionin the minds of the consumer when the adverts were displayed. Butaccording to the current law in Europe, the brand owner doesn'tneed to prove confusion where a trade mark is used in relation toidentical goods or services. That's a key reason why this isdifferent from the US litigation on the same subject and a keyreason .

In just under five weeks we should find out whether the Court ofJustice agrees with the Advocate General or not. That ruling willhave far greater significance for brand holders and the advertisingstrategies of their rivals than last week's ruling in France.

By , a partner with Pinsent Masons, the lawfirm behind OUT-LAW.COM. Pinsent Masons is acting for over the use ofAdWords – a case that is on hold pending the full judgment of theCourt of Justice in the Google France  cases.