IP, Technology & Data

Google Adwords is a system where you can buy a good screen position for your advert in the results of a Google search for a word or a phrase you choose. So for example I could bid up to £2 for a Brodies’ advert to be displayed when a user Google’s “Outsourcing Law Scotland”. (Actually you only pay Google if someone clicks-through on your advert.)

I have been mucking around with Adwords in order to drive traffic to this Blog site partly because I got a free £50 credit from Google in a magazine flyer, partly because it’s something I need to understand in order to advise clients, and partly because there are interesting legal aspects to it.

Here is an example of my advert (click on the image to see it in a better resolution)

The words/phrases I bid for were all fairly dull – “technology law”, “intellectual property law”. But imagine I had bid for a competitor’s brand name. I might get more traffic but I don’t think my competitors would be that impressed.

This is what happened in Interflora v. Marks and Spencer. M&S bid for its flower delivery advert to be displayed if anyone Googled “Interflora”. Interflora are going after M&S for trade mark infringement and passing off. The case is working its way through the Courts. Watch this space for the result.

In a parallel series of cases in the European Court of Justice (the highest court in Europe), the brand owners, including Louis Vuitton, sued Google (as opposed to the person who purchased the Adword). Last week the ECJ held that Google was not liable because it was just a conduit for the infringement and not the author of the infringement. While I think that decision is questionable, the upshot is clear – if you are the brand owner you have to go against the person who purchases the Adword, and not Google.


Based on this I thought it would be funny for my advert to be displayed whenever anyone searched  for “Google” or  “Adword”. Surprisingly, Google seemed prepared to let me do this. However, in the end I got cold feet. (I had visions of trying to explain to the Brodies’ managing partner why Google was suing Brodies.)

IP and Technology