The case of Google vs. Louis Vuitton has today been decisive by the European Court of Justice, writes Dai Davis, IT lawyer and partner at Brooke North.

It fears the way in which Google sells keywords - "AdWords" - as links to websites. Google permits advertisers to choose keywords. When the keyword is consequently entered by a user of Google, the advertiser's website will show as a "sponsored link" at the top of the search results. If a user consequently clicks on that sponsored link, a fee is payable by the advertiser to Google.

The advertiser can help its ranking by paying additional for the use of the keyword. Louis Vuitton complained that 3rd parties were paying for keywords that were trademarks of Louis Vuitton. Also an advertiser could "buy" the right to use such a keyword in mishmash with the word "copy" or "imitation" in order to be directed to a website that was selling fake goods. Louis Vuitton complained to a French court that Google was infringing its trade marks.

The European Court of Justice has today given its result in this case. basically it has decided that:
• Louis Vuitton can stop use of its trade mark as a keyword, without the permission of Google.
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• Louis Vuitton cannot directly prevent use of its trade mark as a keyword by Google unless Google has "played an active role of such a type as to give [Google] knowledge of, or control over, the data stored".
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While the first of these look likes clear, the second is not. It begs, among others, the questions "how much knowledge" and "how much control".
On the basis of this decision in the Louis Vuitton case, it would look likely that Interflora will be capable to stop this use by Marks & Spencer and Flowers Direct.