The Handbags and the Glad Rags

September 24, 2009

I was on holiday when I read the Advocate General’s Opinion in {i}Google Inc v Louis Vuitton{/i}. Obviously I was half on holiday as the AdWords case does not form part of my normal holiday reading (which usually includes something worthy that I never start) and, since I was half on holiday, I didn’t actually get much past the ECJ press release. The {Opinion itself:} is actually a little more entertaining (which isn’t saying much) and a great deal more impressive.

But my holiday situation enabled me to carry out a real world AdWords search. Sitting in ‘Fish Alley’ in Fuengirola with a meal and a bottle of rioja, it occurred to me that it would be an interesting experiment to carry out such a real world word search for Louis Vuitton handbags. I therefore called out ‘has anyone got any Louis Vuitton bags?’ As interesting experiments go, it was a definite success – just as the interesting experiment of putting one’s arm in a wasp’s nest could properly be deemed a success when establishing that you get stung. I believe there was a man who recently ‘experimented’ by going to the Kop at Anfield and peeling off his jumper to reveal a Man Utd replica shirt – it was a bit like that.

My experiment established five things. First, the call brought a large number of responses. Secondly, none of the gentlemen offering me bags actually had any Louis Vuitton bags. Thirdly, every street hawker in the area has a number of bags that are described as Louis Vuitton bags. Most had a resemblance to the real thing in the same way that Brad Pitt and I resemble each other (hey, with lots of make-up and padding, in poor lighting and from a distance, there really is a {i}resemblance{/i} – he shouldn’t give up hope). A few resembled the real thing as I resemble Angelina Jolie – not a lot, even if I was caught in drag. The odd one might have had a potential career as a celebrity look-a-like. Fourthly, and unsurprisingly, it never occurred to any of the hawkers that I actually wanted a real Louis Vuitton bag – after all, if that’s what I wanted I would have been in one of the many boutiques not 200 yards away that sells the real thing. Fifthly, and least relevantly, I established that street hawkers are (at best) somewhat bemused when you try and explain that your call was merely experimental for the purposes of research for the Society for Computers and Law; they were inclined to assume that I had had too much sun (and I probably had had too much of something).

I accept of course that my experiment was totally flawed insofar as it was meant to parallel the role of Google. For starters, I should have been enquiring on behalf of a mute, have made my announcement so loudly that even the owners of the boutiques could hear and should have given a preferential position in the queue of providers to those that offered me money. But I wasn’t that obsessed or that inebriated.

The real lesson learned is one that we all know already. The owners of trade marks in luxury brands are seeing their goods ripped off right, left and centre – whether by street hawkers or cyber hawkers. It’s hard to feel sorry for people selling showy, overpriced goods. I am genuinely surprised to find that I do.

It is important to remember that encouraging investment is a crucial part of the rationale that supports trade marks – as Attorney General Poiares Maduro expressly acknowledges (at [105]). I feel that the sale of AdWords contributes to a general Internet situation which acts as a disincentive to building up a new brand; the Internet possibilities (and certainly not AdWords alone) act as an incentive to piggy-back on an existing brand.

Overall the Opinion is so impressively detailed and persuasive that one finds it hard to disagree. Advocate General Poiares Maduro is right to be concerned about the effect of giving trade mark owners general control over keywords although I am not sure that was quite in issue to the extent suggested. But, when he dismisses the need to ‘make a radical change’ (at [118]), I found myself wondering if he would feel the same if he had just delivered a look-a-like bag to a loved one who knew what the real thing looked like. When he worries (at [122]) about the effect of requiring Google to block certain words from AdWords and says that ‘it is no exaggeration to say that [the effect would be that] the very nature of the internet and search engines as we know it would change’, I find myself thinking that it is indeed a considerable exaggeration, although I accept that the funding model on which Google is built would be adversely affected.

I suspect Advocate General Poiares Maduro is largely right in his analysis and that the ECJ will endorse his views, after all that is what always happens. But I hope we find judges prepared to make a ‘radical change’ and deal with a genuine problem. I don’t think that a requirement for Google to police its AdWords more effectively would signal the end of the Internet as we know it.

Finally, and on a tangential point that arises from the Opinion, I’d recommend a look at the {Pangloss blog:} of Lilian Edwards on the liability exemption for hosts under Article 14 of the E-Commerce Directive. The views expressed in the opinion and applied in other contexts could well create the ‘fun’ she predicts.