{ "attribution": { "source": "legal.exploreworldai.com", "canonical": "https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:62008cj0236", "cite_as": "NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:62008cj0236)", "license": "https://legal.exploreworldai.com/revision", "version": "legal-2026-10-13", "fingerprint": "ewai:eu:a03983", "proof": "sha256:9b067e1f36ac217b6fceff35d750e9ba208d7a9ef69d3f0974e9ecb489a63d2c", "jurisdiction": "eu", "lang": "en", "publisher": "NovaCopilot by ExploreWorld Legal", "terms": "https://legal.exploreworldai.com/om" }, "brand_source": "Source: NovaCopilot", "item": { "schema_version": "1.0.0", "id": "eu:62008cj0236", "jurisdiction": "eu", "lang": "en", "brand_source": "Source: NovaCopilot", "brand": { "product": "NovaCopilot", "platform": "ExploreWorldAI", "infrastructure": "ExploreWorld Legal", "infrastructure_url": "legal.exploreworldai.com", "legal_entity": "Valkiv Ventures AB", "permanent_url": "https://legal.exploreworldai.com/novacopilot", "source": "Source: NovaCopilot", "powered_by": "Powered by NovaCopilot", "license": "https://legal.exploreworldai.com/licensvillkor" }, "sections": [ { "title": "Joined Cases C-236/08 to C-238/08", "paragraphs": [] }, { "title": "Google France SARL", "paragraphs": [ "para_3", "para_4", "para_5" ] }, { "title": "Louis Vuitton Malletier SA and Others", "paragraphs": [] }, { "title": "(Reference for a preliminary ruling from the Cour de cassation (France))", "paragraphs": [ "para_8" ] }, { "title": "Summary of the Judgment", "paragraphs": [ "para_10" ] }, { "title": "(Council Regulation No 40/94, Art. 9(1); Council Directive 89/104, Art. 5(1) and (2))", "paragraphs": [ "para_12" ] }, { "title": "(Council Regulation No 40/94, Art. 9(1)(a); Council Directive 89/104, Art. 5(1)(a))", "paragraphs": [ "para_14" ] }, { "title": "(Council Regulation No 40/94, Art. 9(1)(a); Council Directive 89/104, Art. 5(1)(a))", "paragraphs": [ "para_16" ] }, { "title": "(Council Regulation No 40/94, Art. 9(1)(a); Council Directive 89/104, Art. 5(1)(a))", "paragraphs": [ "para_18" ] }, { "title": "(European Parliament and Council Directive 2000/31, Art. 14)", "paragraphs": [ "para_20", "para_21", "para_22", "para_23", "para_24", "para_25" ] }, { "title": "(see paras 53-57, 105, operative part 2)", "paragraphs": [ "para_27", "para_28", "para_29" ] }, { "title": "(see paras 71-73)", "paragraphs": [ "para_31", "para_32", "para_33", "para_34", "para_35", "para_36" ] }, { "title": "(see paras 84-85, 87-90, 99, operative part 1)", "paragraphs": [ "para_38", "para_39", "para_40", "para_41", "para_42" ] }, { "title": "(see paras 91-95)", "paragraphs": [ "para_44", "para_45" ] }, { "title": "(see paras 114, 119-120, operative part 3)", "paragraphs": [] }, { "title": "JUDGMENT OF THE COURT (Grand Chamber)", "paragraphs": [] }, { "title": "23 March 2010 ( * )", "paragraphs": [ "para_49", "para_50", "para_51", "para_52", "para_53", "para_54", "para_55" ] }, { "title": "Google France SARL", "paragraphs": [ "para_57", "para_58", "para_59", "para_60" ] }, { "title": "Google France SARL", "paragraphs": [ "para_62", "para_63", "para_64", "para_65", "para_66", "para_67", "para_68", "para_69", "para_70", "para_71", "para_72", "para_73", "para_74", "para_75", "para_76", "para_77", "para_78", "para_79", "para_80", "para_81" ] }, { "title": "Judgment", "paragraphs": [ "para_83", "para_84" ] }, { "title": "I – Legal context", "paragraphs": [] }, { "title": "A – Directive 89/104", "paragraphs": [] }, { "title": "3 Article 5 of Directive 89/104, entitled ‘Rights conferred by a trade mark’, provides:", "paragraphs": [ "para_88", "para_89", "para_90", "para_91" ] }, { "title": "3. The following, inter alia, may be prohibited under paragraphs l and 2:", "paragraphs": [] }, { "title": "(a) affixing the sign to the goods or to the packaging thereof;", "paragraphs": [ "para_94" ] }, { "title": "(c) importing or exporting the goods under the sign;", "paragraphs": [ "para_96", "para_97", "para_98", "para_99" ] }, { "title": "(a) his own name or address;", "paragraphs": [ "para_101", "para_102", "para_103", "para_104", "para_105", "para_106", "para_107", "para_108", "para_109" ] }, { "title": "B – Regulation No 40/94", "paragraphs": [ "para_111", "para_112", "para_113", "para_114", "para_115" ] }, { "title": "2. The following, inter alia, may be prohibited under paragraph 1:", "paragraphs": [] }, { "title": "(a) affixing the sign to the goods or to the packaging thereof;", "paragraphs": [ "para_118" ] }, { "title": "(c) importing or exporting the goods under that sign;", "paragraphs": [ "para_120", "para_121", "para_122", "para_123" ] }, { "title": "(a) his own name or address;", "paragraphs": [ "para_125", "para_126", "para_127", "para_128", "para_129", "para_130", "para_131" ] }, { "title": "C – Directive 2000/31", "paragraphs": [] }, { "title": "12 Recital 29 in the preamble to Directive 2000/31 states:", "paragraphs": [ "para_134" ] }, { "title": "13 Recitals 40 to 46 in the preamble to Directive 2000/31 read as follows:", "paragraphs": [ "para_136", "para_137", "para_138", "para_139", "para_140", "para_141", "para_142", "para_143", "para_144", "para_145", "para_146" ] }, { "title": "For the purposes of this definition:", "paragraphs": [ "para_148", "para_149", "para_150", "para_151" ] }, { "title": "16 Article 6 of Directive 2000/31 states:", "paragraphs": [ "para_153", "para_154", "para_155", "para_156", "para_157" ] }, { "title": "18 Article 12 of Directive 2000/31, entitled ‘Mere conduit’, provides:", "paragraphs": [ "para_159" ] }, { "title": "(a) does not initiate the transmission;", "paragraphs": [] }, { "title": "(b) does not select the receiver of the transmission; and", "paragraphs": [ "para_162", "para_163", "para_164" ] }, { "title": "19 Article 13 of Directive 2000/31, entitled ‘Caching’, states:", "paragraphs": [ "para_166" ] }, { "title": "(a) the provider does not modify the information;", "paragraphs": [] }, { "title": "(b) the provider complies with conditions on access to the information;", "paragraphs": [ "para_169", "para_170", "para_171", "para_172" ] }, { "title": "20 Article 14 of Directive 2000/31, entitled ‘Hosting’, provides:", "paragraphs": [ "para_174", "para_175", "para_176", "para_177", "para_178" ] }, { "title": "21 Article 15 of Directive 2000/31, entitled ‘No general obligation to monitor’, provides:", "paragraphs": [ "para_180", "para_181", "para_182" ] }, { "title": "A – The ‘AdWords’ referencing service", "paragraphs": [ "para_184", "para_185", "para_186", "para_187", "para_188", "para_189" ] }, { "title": "B – Case C-236/08", "paragraphs": [ "para_191", "para_192", "para_193", "para_194", "para_195", "para_196", "para_197", "para_198" ] }, { "title": "C – Case C-237/08", "paragraphs": [ "para_200", "para_201", "para_202", "para_203", "para_204", "para_205", "para_206" ] }, { "title": "D – Case C-238/08", "paragraphs": [ "para_208", "para_209", "para_210", "para_211", "para_212", "para_213", "para_214" ] }, { "title": "III – Consideration of the questions referred", "paragraphs": [ "para_216" ] }, { "title": "1. Preliminary considerations", "paragraphs": [ "para_218", "para_219", "para_220", "para_221", "para_222", "para_223", "para_224", "para_225", "para_226", "para_227", "para_228", "para_229", "para_230", "para_231", "para_232", "para_233", "para_234", "para_235", "para_236", "para_237", "para_238", "para_239", "para_240", "para_241", "para_242", "para_243", "para_244", "para_245", "para_246", "para_247", "para_248", "para_249", "para_250", "para_251", "para_252", "para_253", "para_254", "para_255", "para_256", "para_257", "para_258", "para_259", "para_260", "para_261", "para_262", "para_263", "para_264", "para_265", "para_266", "para_267", "para_268", "para_269", "para_270", "para_271", "para_272", "para_273", "para_274", "para_275", "para_276", "para_277", "para_278", "para_279", "para_280", "para_281", "para_282", "para_283", "para_284", "para_285", "para_286", "para_287", "para_288", "para_289", "para_290", "para_291" ] }, { "title": "B – The liability of the referencing service provider", "paragraphs": [ "para_293", "para_294", "para_295", "para_296", "para_297", "para_298", "para_299", "para_300", "para_301", "para_302", "para_303", "para_304", "para_305", "para_306", "para_307" ] }, { "title": "IV – Costs", "paragraphs": [ "para_309" ] }, { "title": "On those grounds, the Court (Grand Chamber) hereby rules:", "paragraphs": [ "para_311", "para_312", "para_313", "para_314", "para_315" ] } ], "paragraphs": [ { "text": "Joined Cases C-236/08 to C-238/08", "paragraph_id": "para_1" }, { "text": "Google France SARL", "paragraph_id": "para_2" }, { "text": "and", "paragraph_id": "para_3" }, { "text": "Google Inc.", "paragraph_id": "para_4" }, { "text": "v", "paragraph_id": "para_5" }, { "text": "Louis Vuitton Malletier SA and Others", "paragraph_id": "para_6" }, { "text": "(Reference for a preliminary ruling from the Cour de cassation (France))", "paragraph_id": "para_7" }, { "text": "(Trade marks – Internet – Search engine – Keyword advertising – Display, on the basis of keywords corresponding to trade marks, of links to sites of competitors of the proprietors of those\n marks or to sites offering imitation goods – Directive 89/104/EEC – Article 5 – Regulation (EC) No 40/94 – Article 9 – Liability of the search engine operator – Directive 2000/31/EC (‘Directive on electronic commerce’))", "paragraph_id": "para_8" }, { "text": "Summary of the Judgment", "paragraph_id": "para_9" }, { "text": "1. Approximation of laws – Trade marks – Interpretation of Regulation No 40/94 and Directive 89/104 – Right of the proprietor\n of a trade mark to oppose the use by a third party of an identical sign for identical goods – Use of the trade mark within\n the meaning of Articles 9(1) of the regulation and 5(1) and (2) of the directive", "paragraph_id": "para_10" }, { "text": "(Council Regulation No 40/94, Art. 9(1); Council Directive 89/104, Art. 5(1) and (2))", "paragraph_id": "para_11" }, { "text": "2. Approximation of laws – Trade marks – Interpretation of Regulation No 40/94 and Directive 89/104 – Right of the proprietor\n of a trade mark to oppose the use by a third party of an identical sign for identical goods – Use of the trade mark within\n the meaning of Articles 9(1)(a) of the regulation and 5(1)(a) of the directive", "paragraph_id": "para_12" }, { "text": "(Council Regulation No 40/94, Art. 9(1)(a); Council Directive 89/104, Art. 5(1)(a))", "paragraph_id": "para_13" }, { "text": "3. Approximation of laws – Trade marks – Interpretation of Regulation No 40/94 and Directive 89/104 – Right of the proprietor\n of a trade mark to oppose the use by a third party of an identical sign for identical goods – Advertising in the context of\n a referencing service on the internet", "paragraph_id": "para_14" }, { "text": "(Council Regulation No 40/94, Art. 9(1)(a); Council Directive 89/104, Art. 5(1)(a))", "paragraph_id": "para_15" }, { "text": "4. Approximation of laws – Trade marks – Interpretation of Regulation No 40/94 and Directive 89/104 – Right of the proprietor\n of a trade mark to oppose the use by a third party of an identical sign for identical goods – Advertising in the context of\n a referencing service on the internet", "paragraph_id": "para_16" }, { "text": "(Council Regulation No 40/94, Art. 9(1)(a); Council Directive 89/104, Art. 5(1)(a))", "paragraph_id": "para_17" }, { "text": "5. Approximation of laws – Electronic commerce – Directive 2000/31 – Liability of intermediate service providers", "paragraph_id": "para_18" }, { "text": "(European Parliament and Council Directive 2000/31, Art. 14)", "paragraph_id": "para_19" }, { "text": "1. An internet referencing service provider that stores, as a keyword, a sign identical to a trade mark and organises the display\n of advertisements on the basis of that keyword does not use that sign within the meaning of Article 5(1) and (2) of Directive\n 89/104 relating to trade marks or of Article 9(1) of Regulation No 40/94 on the Community trade mark.", "paragraph_id": "para_20" }, { "text": "It is common ground that the referencing service provider carries on a commercial activity with a view to economic advantage\n when it stores as keywords, for certain of its clients, signs which are identical with trade marks and arranges for the display\n of ‘ads’ on the basis of those keywords.", "paragraph_id": "para_21" }, { "text": "It is also common ground that that service is not supplied only to the proprietors of those trade marks or to operators entitled\n to market their goods or services, but is provided without the consent of the proprietors and is supplied to their competitors\n or to imitators.", "paragraph_id": "para_22" }, { "text": "Although it is clear from those factors that the referencing service provider operates ‘in the course of trade’ when it permits\n advertisers to select, as keywords, signs identical to trade marks, stores those signs and displays its clients’ ‘ads’ on\n the basis thereof, it does not follow, however, from those factors that that service provider itself ‘uses’ those signs within\n the terms of Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94.", "paragraph_id": "para_23" }, { "text": "The use, by a third party, of a sign identical or similar to the proprietor’s trade mark implies, at the very least, that\n that third party uses the sign in its own commercial communication. A referencing service provider allows its clients to use\n signs identical or similar to trade marks, without itself using those signs.", "paragraph_id": "para_24" }, { "text": "That conclusion cannot be called into question by the fact that the service provider is paid by its clients for the use of\n those signs. The fact of creating the technical conditions necessary for the use of a sign and being paid for that service\n does not mean that the party offering the service itself uses the sign.", "paragraph_id": "para_25" }, { "text": "(see paras 53-57, 105, operative part 2)", "paragraph_id": "para_26" }, { "text": "2. The use as a keyword by the advertiser of a sign identical to the trade mark of a competitor in an internet referencing service\n in order that internet users may become aware, not only of the goods or services offered by that competitor, but also of those\n of the advertiser, constitutes a use in relation to the goods or services of that advertiser.", "paragraph_id": "para_27" }, { "text": "In addition, even in cases in which the advertiser does not seek, by its use, as a keyword, of a sign identical to the trade\n mark, to present its goods or services to internet users as an alternative to the goods or services of the proprietor of the\n trade mark but, on the contrary, seeks to mislea …", "paragraph_id": "para_28" }, { "text": "It follows that use by an advertiser of a sign identical with a trade mark as a keyword in the context of an internet referencing\n service falls within the concept of use ‘in relation to goods or services’ within the meaning of Article 5(1)(a) of Directive\n 89/104 relating to trade marks.", "paragraph_id": "para_29" }, { "text": "(see paras 71-73)", "paragraph_id": "para_30" }, { "text": "3. Article 5(1)(a) of Directive 89/104 relating to trade marks and Article 9(1)(a) of Regulation No 40/94 on the Community trade\n mark must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising,\n on the basis of a keyword identical to th …", "paragraph_id": "para_31" }, { "text": "In such a situation, which is, moreover, characterised by the fact that the ‘ad’ in question appears immediately after entry\n of the trade mark as a search term by the internet user concerned and is displayed at a point when the trade mark is, in its\n capacity as a search term, also displayed on the …", "paragraph_id": "para_32" }, { "text": "Having regard to the essential function of a trade mark, which, in the area of electronic commerce, consists in particular\n in enabling internet users browsing the ‘ads’ displayed in response to a search relating to a specific trade mark to distinguish\n the goods or services of the proprietor of tha …", "paragraph_id": "para_33" }, { "text": "It is for the national court to assess, on a case-by-case basis, whether the facts of the dispute before it indicate adverse\n effects, or a risk thereof, on the function of indicating origin.", "paragraph_id": "para_34" }, { "text": "When a third party’s ‘ad’ suggests that there is an economic link between that third party and the proprietor of the trade\n mark, the conclusion must be that there is an adverse effect on the function of indicating origin.", "paragraph_id": "para_35" }, { "text": "When the ‘ad’, while not suggesting the existence of an economic link, is to such an extent vague as to the origin of the\n goods or services at issue that normally informed and reasonably attentive internet users are unable to determine, on the\n basis of the advertising link and the commercial messa …", "paragraph_id": "para_36" }, { "text": "(see paras 84-85, 87-90, 99, operative part 1)", "paragraph_id": "para_37" }, { "text": "4. Since the course of trade provides a varied offer of goods and services, the proprietor of a trade mark may have not only\n the objective of indicating, by means of that mark, the origin of its goods or services, but also that of using its mark for\n advertising purposes designed to inform and persuade consumers.", "paragraph_id": "para_38" }, { "text": "Accordingly, the proprietor of a trade mark is entitled to prohibit a third party from using, without the proprietor’s consent,\n a sign identical with its trade mark in relation to goods or services which are identical to those for which that trade mark\n is registered, when that use adversely affects the proprietor’s use of its mark as a factor in sales promotion or as an instrument\n of commercial strategy.", "paragraph_id": "para_39" }, { "text": "With regard to the use by internet advertisers of a sign identical to another person’s trade mark as a keyword for the purposes\n of displaying advertising messages, it is clear that that use is liable to have certain repercussions on the advertising use\n of that mark by its proprietor and on the latter’s commercial strategy.", "paragraph_id": "para_40" }, { "text": "Having regard to the important position which internet advertising occupies in trade and commerce, it is plausible that the\n proprietor of a trade mark may register its own trade mark as a keyword with a referencing service provider in order to have\n an ‘ad’ appear under the heading ‘sponsored links …", "paragraph_id": "para_41" }, { "text": "Nevertheless, those repercussions of use by third parties of a sign identical with the trade mark do not of themselves constitute\n an adverse effect on the advertising function of the trade mark.", "paragraph_id": "para_42" }, { "text": "(see paras 91-95)", "paragraph_id": "para_43" }, { "text": "5. Article 14 of Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce,\n in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the rule laid down therein\n applies to an internet referencing service prov …", "paragraph_id": "para_44" }, { "text": "It is for the national court to examine whether the role played by an internet referencing service provider is neutral, in\n the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data\n which it stores.", "paragraph_id": "para_45" }, { "text": "(see paras 114, 119-120, operative part 3)", "paragraph_id": "para_46" }, { "text": "JUDGMENT OF THE COURT (Grand Chamber)", "paragraph_id": "para_47" }, { "text": "23 March 2010 ( * )", "paragraph_id": "para_48" }, { "text": "(Trade marks – Internet – Search engine – Keyword advertising – Display, on the basis of keywords corresponding to trade marks, of links to sites of competitors of the proprietors of those\n marks or to sites offering imitation goods – Directive 89/104/EEC – Article 5 – Regulation (EC) No 40/94 – Article 9 – Liability of the search engine operator – Directive 2000/31/EC (‘Directive on electronic commerce’))", "paragraph_id": "para_49" }, { "text": "In Joined Cases C-236/08 to C-238/08,", "paragraph_id": "para_50" }, { "text": "REFERENCES for a preliminary ruling under Article 234 EC from the Cour de cassation (France), made by decisions of 20 May\n 2008, received at the Court on 3 June 2008, in the proceedings", "paragraph_id": "para_51" }, { "text": "Google France SARL,", "paragraph_id": "para_52" }, { "text": "Google Inc.", "paragraph_id": "para_53" }, { "text": "v", "paragraph_id": "para_54" }, { "text": "Louis Vuitton Malletier SA (C-236/08),", "paragraph_id": "para_55" }, { "text": "Google France SARL", "paragraph_id": "para_56" }, { "text": "v", "paragraph_id": "para_57" }, { "text": "Viaticum SA,", "paragraph_id": "para_58" }, { "text": "Luteciel SARL (C-237/08),", "paragraph_id": "para_59" }, { "text": "and", "paragraph_id": "para_60" }, { "text": "Google France SARL", "paragraph_id": "para_61" }, { "text": "v", "paragraph_id": "para_62" }, { "text": "Centre national de recherche en relations humaines (CNRRH) SARL,", "paragraph_id": "para_63" }, { "text": "Pierre-Alexis Thonet,", "paragraph_id": "para_64" }, { "text": "Bruno Raboin,", "paragraph_id": "para_65" }, { "text": "Tiger SARL (C-238/08),", "paragraph_id": "para_66" }, { "text": "THE COURT (Grand Chamber),", "paragraph_id": "para_67" }, { "text": "composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts and E. Levits, Presidents of Chambers, C.W.A. Timmermans,\n A. Rosas, A. Borg Barthet, M. Ilešič (Rapporteur), J. Malenovský, U. Lõhmus, A. Ó Caoimh and J.-J. Kasel, Judges,", "paragraph_id": "para_68" }, { "text": "Advocate General: M. Poiares Maduro,", "paragraph_id": "para_69" }, { "text": "Registrar: H. von Holstein, Deputy Registrar,", "paragraph_id": "para_70" }, { "text": "having regard to the written procedure and further to the hearing on 17 March 2009,", "paragraph_id": "para_71" }, { "text": "after considering the observations submitted on behalf of:", "paragraph_id": "para_72" }, { "text": "– Google France SARL and Google Inc., by A. Néri and S. Proust, avocats, and by G. Hobbs QC,", "paragraph_id": "para_73" }, { "text": "– Louis Vuitton Malletier SA, by P. de Candé, avocat,", "paragraph_id": "para_74" }, { "text": "– Viaticum SA and Luteciel SARL, by C. Fabre, avocat,", "paragraph_id": "para_75" }, { "text": "– Centre national de recherche en relations humaines (CNRRH) SARL and M. Thonet, by L. Boré and P. Buisson, avocats,", "paragraph_id": "para_76" }, { "text": "– Tiger SARL, by O. de Nervo, avocat,", "paragraph_id": "para_77" }, { "text": "– the French Government, by G. de Bergues and B. Cabouat, acting as Agents,", "paragraph_id": "para_78" }, { "text": "– the Commission of the European Communities, by H. Krämer, acting as Agent,", "paragraph_id": "para_79" }, { "text": "after hearing the Opinion of the Advocate General at the sitting on 22 September 2009,", "paragraph_id": "para_80" }, { "text": "gives the following", "paragraph_id": "para_81" }, { "text": "Judgment", "paragraph_id": "para_82" }, { "text": "1 These references for a preliminary ruling concern the interpretation of Article 5(1) and (2) of First Council Directive 89/104/EEC\n of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), Article 9(1)\n of Council Regulation (EC) No 40/94 of 20 …", "paragraph_id": "para_83" }, { "text": "2 The references have been made in the course of proceedings between, in Case C‑236/08, the companies Google France SARL and\n Google Inc. (individually or jointly ‘Google’) and the company Louis Vuitton Malletier SA (‘Vuitton’) and, in Cases C‑237/08\n and C‑238/08, between Google and the companies V …", "paragraph_id": "para_84" }, { "text": "I – Legal context", "paragraph_id": "para_85" }, { "text": "A – Directive 89/104", "paragraph_id": "para_86" }, { "text": "3 Article 5 of Directive 89/104, entitled ‘Rights conferred by a trade mark’, provides:", "paragraph_id": "para_87" }, { "text": "‘1. The registered trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent\n all third parties not having his consent from using in the course of trade:", "paragraph_id": "para_88" }, { "text": "(a) any sign which is identical with the trade mark in relation to goods or services which are identical with those for which\n the trade mark is registered;", "paragraph_id": "para_89" }, { "text": "(b) any sign where, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods\n or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public, which\n includes the likelihood of association between the sign and the trade mark.", "paragraph_id": "para_90" }, { "text": "2. Any Member State may also provide that the proprietor shall be entitled to prevent all third parties not having his consent\n from using in the course of trade any sign which is identical with, or similar to, the trade mark in relation to goods or\n services which are not similar to those for which …", "paragraph_id": "para_91" }, { "text": "3. The following, inter alia, may be prohibited under paragraphs l and 2:", "paragraph_id": "para_92" }, { "text": "(a) affixing the sign to the goods or to the packaging thereof;", "paragraph_id": "para_93" }, { "text": "(b) offering the goods, or putting them on the market or stocking them for these purposes under that sign, or offering or supplying\n services thereunder;", "paragraph_id": "para_94" }, { "text": "(c) importing or exporting the goods under the sign;", "paragraph_id": "para_95" }, { "text": "(d) using the sign on business papers and in advertising.", "paragraph_id": "para_96" }, { "text": "…’", "paragraph_id": "para_97" }, { "text": "4 Article 6 of Directive 89/104, entitled ‘Limitation of the effects of a trade mark’, provides:", "paragraph_id": "para_98" }, { "text": "‘1. The trade mark shall not entitle the proprietor to prohibit a third party from using, in the course of trade,", "paragraph_id": "para_99" }, { "text": "(a) his own name or address;", "paragraph_id": "para_100" }, { "text": "(b) indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of\n goods or of rendering of the service, or other characteristics of goods or services;", "paragraph_id": "para_101" }, { "text": "(c) the trade mark where it is necessary to indicate the intended purpose of a product or service, in particular as accessories\n or spare parts;", "paragraph_id": "para_102" }, { "text": "provided he uses them in accordance with honest practices in industrial or commercial matters.", "paragraph_id": "para_103" }, { "text": "…’", "paragraph_id": "para_104" }, { "text": "5 Article 7 of Directive 89/104, entitled ‘Exhaustion of the rights conferred by a trade mark’, stated in its original version:", "paragraph_id": "para_105" }, { "text": "‘1. The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market\n in the Community under that trade mark by the proprietor or with his consent.", "paragraph_id": "para_106" }, { "text": "2. Paragraph 1 shall not apply where there exist legitimate reasons for the proprietor to oppose further commercialisation of\n the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.’", "paragraph_id": "para_107" }, { "text": "6 Pursuant to Article 65(2) of the Agreement on the European Economic Area (‘the EEA’) of 2 May 1992 (OJ 1994 L 1, p. 3), in\n conjunction with Point 4 of Annex XVII to that agreement, the original version of Article 7(1) of Directive 89/104 was amended\n for the purposes of the EEA Agreement and the expression ‘in the Community’ was replaced by the words ‘in a Contracting Party’.", "paragraph_id": "para_108" }, { "text": "7 Directive 89/104 has been repealed by Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008\n to approximate the laws of the Member States relating to trade marks (codified version) (OJ 2008 L 299, p. 25), which entered\n into force on 28 November 2008. However, having regard to the time at which the facts occurred, the disputes in the main proceedings\n remain governed by Directive 89/104.", "paragraph_id": "para_109" }, { "text": "B – Regulation No 40/94", "paragraph_id": "para_110" }, { "text": "8 Article 9 of Regulation No 40/94, entitled ‘Rights conferred by a Community trade mark’, provides:", "paragraph_id": "para_111" }, { "text": "‘1. A Community trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent\n all third parties not having his consent from using in the course of trade:", "paragraph_id": "para_112" }, { "text": "(a) any sign which is identical with the Community trade mark in relation to goods or services which are identical with those\n for which the Community trade mark is registered;", "paragraph_id": "para_113" }, { "text": "(b) any sign where, because of its identity with or similarity to the Community trade mark and the identity or similarity of the\n goods or services covered by the Community trade mark and the sign, there exists a likelihood of confusion on the part of\n the public; the likelihood of confusion includes the likelihood of association between the sign and the trade mark;", "paragraph_id": "para_114" }, { "text": "(c) any sign which is identical with or similar to the Community trade mark in relation to goods or services which are not similar\n to those for which the Community trade mark is registered, where the latter has a reputation in the Community and where use\n of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of\n the Community trade mark.", "paragraph_id": "para_115" }, { "text": "2. The following, inter alia, may be prohibited under paragraph 1:", "paragraph_id": "para_116" }, { "text": "(a) affixing the sign to the goods or to the packaging thereof;", "paragraph_id": "para_117" }, { "text": "(b) offering the goods, putting them on the market or stocking them for these purposes under that sign, or offering or supplying\n services thereunder;", "paragraph_id": "para_118" }, { "text": "(c) importing or exporting the goods under that sign;", "paragraph_id": "para_119" }, { "text": "(d) using the sign on business papers and in advertising.", "paragraph_id": "para_120" }, { "text": "…’", "paragraph_id": "para_121" }, { "text": "9 Article 12 of Regulation No 40/94, entitled ‘Limitation of the effects of a Community trade mark’, provides:", "paragraph_id": "para_122" }, { "text": "‘A Community trade mark shall not entitle the proprietor to prohibit a third party from using in the course of trade:", "paragraph_id": "para_123" }, { "text": "(a) his own name or address;", "paragraph_id": "para_124" }, { "text": "(b) indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of\n the goods or of rendering of the service, or other characteristics of the goods or service;", "paragraph_id": "para_125" }, { "text": "(c) the trade mark where it is necessary to indicate the intended purpose of a product or service, in particular as accessories\n or spare parts,", "paragraph_id": "para_126" }, { "text": "provided he uses them in accordance with honest practices in industrial or commercial matters.’", "paragraph_id": "para_127" }, { "text": "10 Article 13 of Regulation No 40/94, entitled ‘Exhaustion of the rights conferred by a Community trade mark’, states:", "paragraph_id": "para_128" }, { "text": "‘1. A Community trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the\n market in the Community under that trade mark by the proprietor or with his consent.", "paragraph_id": "para_129" }, { "text": "2. Paragraph 1 shall not apply where there exist legitimate reasons for the proprietor to oppose further commercialisation of\n the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.’", "paragraph_id": "para_130" }, { "text": "11 Regulation No 40/94 was repealed by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified\n version) (OJ 2009 L 78, p. 1), which entered into force on 13 April 2009. However, having regard to the time at which the\n facts occurred, the disputes in the main proceedings remain governed by Regulation No 40/94.", "paragraph_id": "para_131" }, { "text": "C – Directive 2000/31", "paragraph_id": "para_132" }, { "text": "12 Recital 29 in the preamble to Directive 2000/31 states:", "paragraph_id": "para_133" }, { "text": "‘Commercial communications are essential for the financing of information society services and for developing a wide variety\n of new, charge-free services; in the interests of consumer protection and fair trading, commercial communications … must meet\n a number of transparency requirements; …’", "paragraph_id": "para_134" }, { "text": "13 Recitals 40 to 46 in the preamble to Directive 2000/31 read as follows:", "paragraph_id": "para_135" }, { "text": "‘(40) Both existing and emerging disparities in Member States’ legislation and case-law concerning liability of service providers\n acting as intermediaries prevent the smooth functioning of the internal market, in particular by impairing the development\n of cross-border services …; service providers …", "paragraph_id": "para_136" }, { "text": "(41) This Directive strikes a balance between the different interests at stake and establishes principles upon which industry agreements\n and standards can be based.", "paragraph_id": "para_137" }, { "text": "(42) The exemptions from liability established in this Directive cover only cases where the activity of the information society\n service provider is limited to the technical process of operating and giving access to a communication network over which\n information made available by third parties is t …", "paragraph_id": "para_138" }, { "text": "(43) A service provider can benefit from the exemptions for “mere conduit” and for “caching” when he is in no way involved with\n the information transmitted; …", "paragraph_id": "para_139" }, { "text": "(44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts\n goes beyond the activities of “mere conduit” or “caching” and as a result cannot benefit from the liability exemptions established\n for these activities.", "paragraph_id": "para_140" }, { "text": "(45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility\n of injunctions of different kinds; …", "paragraph_id": "para_141" }, { "text": "(46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage\n of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to\n disable access to the information concerned; …’", "paragraph_id": "para_142" }, { "text": "14 Article 2(a) of Directive 2000/31 defines ‘information society services’ by reference to Article 1(2) of Directive 98/34/EC\n of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in\n the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European\n Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18), as:", "paragraph_id": "para_143" }, { "text": "‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient\n of services’.", "paragraph_id": "para_144" }, { "text": "15 Article 1(2) of Directive 98/34, in the version amended by Directive 98/48, continues as follows:", "paragraph_id": "para_145" }, { "text": "‘…", "paragraph_id": "para_146" }, { "text": "For the purposes of this definition:", "paragraph_id": "para_147" }, { "text": "– “at a distance” means that the service is provided without the parties being simultaneously present,", "paragraph_id": "para_148" }, { "text": "– “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment\n for the processing … and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means\n or by other electromagnetic means,", "paragraph_id": "para_149" }, { "text": "– “at the individual request of a recipient of services” means that the service is provided through the transmission of data\n on individual request.", "paragraph_id": "para_150" }, { "text": "…’", "paragraph_id": "para_151" }, { "text": "16 Article 6 of Directive 2000/31 states:", "paragraph_id": "para_152" }, { "text": "‘In addition to other information requirements established by Community law, Member States shall ensure that commercial communications\n which are part of … an information society service comply at least with the following conditions:", "paragraph_id": "para_153" }, { "text": "…", "paragraph_id": "para_154" }, { "text": "(b) the natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable;", "paragraph_id": "para_155" }, { "text": "…’", "paragraph_id": "para_156" }, { "text": "17 Chapter II of Directive 2000/31 includes a Section 4, entitled ‘Liability of intermediary service providers’, which comprises\n Articles 12 to 15.", "paragraph_id": "para_157" }, { "text": "18 Article 12 of Directive 2000/31, entitled ‘Mere conduit’, provides:", "paragraph_id": "para_158" }, { "text": "‘1. Where an information society service is provided that consists of the transmission in a communication network of information\n provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure\n that the service provider is not liable for the information transmitted, on condition that the provider:", "paragraph_id": "para_159" }, { "text": "(a) does not initiate the transmission;", "paragraph_id": "para_160" }, { "text": "(b) does not select the receiver of the transmission; and", "paragraph_id": "para_161" }, { "text": "(c) does not select or modify the information contained in the transmission.", "paragraph_id": "para_162" }, { "text": "2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient\n storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission\n in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary\n for the transmission.", "paragraph_id": "para_163" }, { "text": "3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal\n systems, of requiring the service provider to terminate or prevent an infringement.’", "paragraph_id": "para_164" }, { "text": "19 Article 13 of Directive 2000/31, entitled ‘Caching’, states:", "paragraph_id": "para_165" }, { "text": "‘1. Where an information society service is provided that consists of the transmission in a communication network of information\n provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic,\n intermediate and temporary storage of that …", "paragraph_id": "para_166" }, { "text": "(a) the provider does not modify the information;", "paragraph_id": "para_167" }, { "text": "(b) the provider complies with conditions on access to the information;", "paragraph_id": "para_168" }, { "text": "(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used\n by industry;", "paragraph_id": "para_169" }, { "text": "(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data\n on the use of the information; and", "paragraph_id": "para_170" }, { "text": "(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge\n of the fact that the information at the initial source of the transmission has been removed from the network, or access to\n it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.", "paragraph_id": "para_171" }, { "text": "2. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal\n systems, of requiring the service provider to terminate or prevent an infringement.’", "paragraph_id": "para_172" }, { "text": "20 Article 14 of Directive 2000/31, entitled ‘Hosting’, provides:", "paragraph_id": "para_173" }, { "text": "‘1. Where an information society service is provided that consists of the storage of information provided by a recipient of the\n service, Member States shall ensure that the service provider is not liable for the information stored at the request of a\n recipient of the service, on condition that:", "paragraph_id": "para_174" }, { "text": "(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not\n aware of facts or circumstances from which the illegal activity or information is apparent; or", "paragraph_id": "para_175" }, { "text": "(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.", "paragraph_id": "para_176" }, { "text": "2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.", "paragraph_id": "para_177" }, { "text": "3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal\n systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for\n Member States of establishing procedures governing the removal or disabling of access to information.’", "paragraph_id": "para_178" }, { "text": "21 Article 15 of Directive 2000/31, entitled ‘No general obligation to monitor’, provides:", "paragraph_id": "para_179" }, { "text": "‘1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and\n 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances\n indicating illegal activity.", "paragraph_id": "para_180" }, { "text": "2. Member States may establish obligations for information society service providers promptly to inform the competent public\n authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations\n to communicate to the competent authorities, at their request, information enabling the identification of recipients of their\n service with whom they have storage agreements.’", "paragraph_id": "para_181" }, { "text": "II – The disputes in the main proceedings and the questions referred for a preliminary ruling", "paragraph_id": "para_182" }, { "text": "A – The ‘AdWords’ referencing service", "paragraph_id": "para_183" }, { "text": "22 Google operates an internet search engine. When an internet user performs a search on the basis of one or more words, the\n search engine will display the sites which appear best to correspond to those words, in decreasing order of relevance. These\n are referred to as the ‘natural’ results of the search.", "paragraph_id": "para_184" }, { "text": "23 In addition, Google offers a paid referencing service called ‘AdWords’. That service enables any economic operator, by means\n of the reservation of one or more keywords, to obtain the placing, in the event of a correspondence between one or more of\n those words and that/those entered as a request …", "paragraph_id": "para_185" }, { "text": "24 That advertising link is accompanied by a short commercial message. Together, that link and that message constitute the advertisement\n (‘ad’) displayed under the abovementioned heading.", "paragraph_id": "para_186" }, { "text": "25 A fee for the referencing service is payable by the advertiser for each click on the advertising link. That fee is calculated\n on the basis, in particular, of the ‘maximum price per click’ which the advertiser agreed to pay when concluding with Google\n the contract for the referencing service, and on the basis of the number of times that link is clicked on by internet users.", "paragraph_id": "para_187" }, { "text": "26 A number of advertisers can reserve the same keyword. The order in which their advertising links are then displayed is determined\n according to, in particular, the maximum price per click, the number of previous clicks on those links and the quality of\n the ad as assessed by Google. The advertiser can at any time improve its ranking in the display by fixing a higher maximum\n price per click or by trying to improve the quality of its ad.", "paragraph_id": "para_188" }, { "text": "27 Google has set up an automated process for the selection of keywords and the creation of ads. Advertisers select the keywords,\n draft the commercial message, and input the link to their site.", "paragraph_id": "para_189" }, { "text": "B – Case C-236/08", "paragraph_id": "para_190" }, { "text": "28 Vuitton, which markets, in particular, luxury bags and other leather goods, is the proprietor of the Community trade mark\n ‘Vuitton’ and of the French national trade marks ‘Louis Vuitton’ and ‘LV’. It is common ground that those marks enjoy a certain\n reputation.", "paragraph_id": "para_191" }, { "text": "29 At the beginning of 2003, Vuitton became aware that the entry, by internet users, of terms constituting its trade marks into\n Google’s search engine triggered the display, under the heading ‘sponsored links’, of links to sites offering imitation versions\n of Vuitton’s products. It was also establ …", "paragraph_id": "para_192" }, { "text": "30 Vuitton brought proceeding against Google with a view, inter alia, to obtaining a declaration that Google had infringed its\n trade marks.", "paragraph_id": "para_193" }, { "text": "31 Google was found guilty of infringing Vuitton’s trade marks by a judgment of 4 February 2005 of the Tribunal de grande instance\n de Paris (Regional Court, Paris), and subsequently, on appeal, by judgment of 28 June 2006 of the Cour d’appel de Paris (Court\n of Appeal, Paris). Google has brought an appeal on a point of law (cassation) against that latter judgment.", "paragraph_id": "para_194" }, { "text": "32 In those circumstances, the Cour de cassation (French Court of Cassation) decided to stay the proceedings and to refer the\n following questions to the Court for a preliminary ruling:", "paragraph_id": "para_195" }, { "text": "‘1. Must Article 5(1)(a) and (b) of [Directive 89/104] and Article 9(1)(a) and (b) of [Regulation No 40/94] be interpreted as\n meaning that a provider of a paid referencing service who makes available to advertisers keywords reproducing or imitating\n registered trade marks and arranges by the refere …", "paragraph_id": "para_196" }, { "text": "2. In the event that the trade marks have a reputation, may the proprietor oppose such use under Article 5(2) of [Directive 89/104]\n and Article 9(1)(c) of [Regulation No 40/94]?", "paragraph_id": "para_197" }, { "text": "3. In the event that such use does not constitute a use which may be prevented by the trade mark proprietor under [Directive\n 89/104] or [Regulation No 40/94], may the provider of the paid referencing service be regarded as providing an information\n society service consisting of the storage of infor …", "paragraph_id": "para_198" }, { "text": "C – Case C-237/08", "paragraph_id": "para_199" }, { "text": "33 Viaticum is the proprietor of the French trade marks ‘Bourse des Vols’, ‘Bourse des Voyages’ and ‘BDV’, registered for travel-arrangement\n services.", "paragraph_id": "para_200" }, { "text": "34 Luteciel is a provider of information-technology services to travel agencies. It publishes and maintains Viaticum’s internet\n site.", "paragraph_id": "para_201" }, { "text": "35 Viaticum and Luteciel became aware that the entry, by internet users, of terms constituting the abovementioned trade marks\n into Google’s search engine triggered the display, under the heading ‘sponsored links’, of links to sites of competitors of\n Viaticum. It was also established that Google offered advertisers the possibility of selecting, to that end, keywords which\n correspond to those trade marks.", "paragraph_id": "para_202" }, { "text": "36 Viaticum and Luteciel brought proceedings against Google. By judgment of 13 October 2003, the Tribunal de grande instance\n de Nanterre (Regional Court, Nanterre) found Google guilty of infringement of trade marks and ordered it to compensate Viaticum\n and Luteciel for the losses which they had su …", "paragraph_id": "para_203" }, { "text": "37 In those circumstances, the Cour de cassation decided to stay the proceedings and to refer the following questions to the\n Court for a preliminary ruling:", "paragraph_id": "para_204" }, { "text": "‘1. Must Article 5(1)(a) and (b) of [Directive 89/104] be interpreted as meaning that a provider of a paid referencing service\n who makes available to advertisers keywords reproducing or imitating registered trade marks and arranges by the referencing\n agreement to create and favourably display, on …", "paragraph_id": "para_205" }, { "text": "2. In the event that such use does not constitute a use which may be prevented by the trade mark proprietor under [Directive\n 89/104] or [Regulation No 40/94], may the provider of the paid referencing service be regarded as providing an information\n society service consisting of the storage of infor …", "paragraph_id": "para_206" }, { "text": "D – Case C-238/08", "paragraph_id": "para_207" }, { "text": "38 Mr Thonet is the proprietor of the French trade mark ‘Eurochallenges’, registered for, inter alia, matrimonial agency services.\n CNRRH is a matrimonial agency and holds a licence, granted by Mr Thonet, under the abovementioned mark.", "paragraph_id": "para_208" }, { "text": "39 During 2003, Mr Thonet and CNRRH became aware that the entry, by internet users, of terms constituting the abovementioned\n trade mark into Google’s search engine triggered the display, under the heading ‘sponsored links’, of links to sites of competitors\n of CNRRH, operated by Mr Raboin and Tiger respectively. It was also established that Google offered advertisers the possibility\n of selecting that term as a keyword for that purpose.", "paragraph_id": "para_209" }, { "text": "40 On the application of Mr Thonet and CNRRH, Mr Raboin, Tiger and Google were found guilty of infringement of the trade mark\n by judgment of 14 December 2004 of the Tribunal de grande instance de Nanterre, and subsequently, on appeal, by judgment of\n 23 March 2006 of the Cour d’appel de Versailles. Google has lodged an appeal in cassation against that latter judgment.", "paragraph_id": "para_210" }, { "text": "41 In those circumstances, the Cour de cassation decided to stay the proceedings and to refer the following questions to the\n Court for a preliminary ruling:", "paragraph_id": "para_211" }, { "text": "‘1. Does the reservation by an economic operator, by means of an agreement on paid internet referencing, of a keyword triggering,\n in the case of a request using that word, the display of a link proposing connection to a site operated by that operator in\n order to offer for sale goods or services, a …", "paragraph_id": "para_212" }, { "text": "2. Must Article 5(1)(a) and (b) of [Directive 89/104] be interpreted as meaning that a provider of a paid referencing service\n who makes available to advertisers keywords reproducing or imitating registered trade marks and arranges by the referencing\n agreement to create and favourably display, on t …", "paragraph_id": "para_213" }, { "text": "3. In the event that such use does not constitute a use which may be prevented by the trade mark proprietor under [Directive\n 89/104] or [Regulation No 40/94], may the provider of the paid referencing service be regarded as providing an information\n society service consisting of the storage of infor …", "paragraph_id": "para_214" }, { "text": "III – Consideration of the questions referred", "paragraph_id": "para_215" }, { "text": "A – Use, in an internet referencing service, of keywords corresponding to trade marks of other persons", "paragraph_id": "para_216" }, { "text": "1. Preliminary considerations", "paragraph_id": "para_217" }, { "text": "42 It is common ground that the disputes in the main proceedings arise from the use, as keywords in an internet referencing service,\n of signs which correspond to trade marks, without consent having been given by the proprietors of those trade marks. Those\n keywords have been chosen by clients of th …", "paragraph_id": "para_218" }, { "text": "43 By its first question in Case C‑236/08, first question in Case C-237/08 and first and second questions in Case C-238/08, which\n it is appropriate to consider together, the Cour de cassation asks, in essence, whether Article 5(1)(a) and (b) of Directive\n 89/104 and Article 9(1)(a) and (b) of Regul …", "paragraph_id": "para_219" }, { "text": "44 The first question in Case C‑236/08, first question in Case C-237/08 and second question in Case C-238/08 focus, in that regard,\n on the storage of such a keyword by the provider of the referencing service and its organisation of the display of its client’s\n ad on the basis of that word, while th …", "paragraph_id": "para_220" }, { "text": "45 Article 5(1)(a) and (b) of Directive 89/104 and Article 9(1)(a) and (b) of Regulation No 40/94 entitle proprietors of trade\n marks, subject to certain conditions, to prohibit third parties from using signs identical with, or similar to, their trade\n marks for goods or services identical with, or similar to, those for which those trade marks are registered.", "paragraph_id": "para_221" }, { "text": "46 In the disputes in the main proceedings, the use of signs corresponding to trade marks as keywords has the object and effect\n of triggering the display of advertising links to sites on which goods or services are offered which are identical with those\n for which those trade marks are registered, namely, leather goods, travel-arrangement services and matrimonial agency services\n respectively.", "paragraph_id": "para_222" }, { "text": "47 Accordingly, the Court will examine the question referred to in paragraph 43 of the present judgment principally from the\n angle of Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94 and only incidentally from the angle\n of the respective paragraphs (1)(b) thereof, sin …", "paragraph_id": "para_223" }, { "text": "48 Following that examination, it will be appropriate to answer the second question in Case C‑236/08, by which the Court is asked\n to examine the same problem from the angle of Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94,\n which concern the rights conferred by reputab …", "paragraph_id": "para_224" }, { "text": "2. The interpretation of Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94", "paragraph_id": "para_225" }, { "text": "49 By application of Article 5(1)(a) of Directive 89/104 or, in the case of Community trade marks, of Article 9(1)(a) of Regulation\n No 40/94, the proprietor of a trade mark is entitled to prohibit a third party from using, without the proprietor’s consent,\n a sign identical with that trade mark whe …", "paragraph_id": "para_226" }, { "text": "a) Use in the course of trade", "paragraph_id": "para_227" }, { "text": "50 The use of a sign identical with a trade mark constitutes use in the course of trade where it occurs in the context of commercial\n activity with a view to economic advantage and not as a private matter (Case C‑206/01 Arsenal Football Club [2002] ECR I‑10273, paragraph 40; Céline , paragraph 17; and UDV North America , paragraph 44).", "paragraph_id": "para_228" }, { "text": "51 With regard, firstly, to the advertiser purchasing the referencing service and choosing as a keyword a sign identical with\n another’s trade mark, it must be held that that advertiser is using that sign within the meaning of that case-law.", "paragraph_id": "para_229" }, { "text": "52 From the advertiser’s point of view, the selection of a keyword identical with a trade mark has the object and effect of displaying\n an advertising link to the site on which he offers his goods or services for sale. Since the sign selected as a keyword is\n the means used to trigger that ad display, it cannot be disputed that the advertiser indeed uses it in the context of commercial\n activity and not as a private matter.", "paragraph_id": "para_230" }, { "text": "53 With regard, next, to the referencing service provider, it is common ground that it is carrying out a commercial activity\n with a view to economic advantage when it stores as keywords, for certain of its clients, signs which are identical with trade\n marks and arranges for the display of ads on the basis of those keywords.", "paragraph_id": "para_231" }, { "text": "54 It is also common ground that that service is not supplied only to the proprietors of those trade marks or to operators entitled\n to market their goods or services, but, at least in the proceedings in question, is provided without the consent of the proprietors\n and is supplied to their competitors or to imitators.", "paragraph_id": "para_232" }, { "text": "55 Although it is clear from those factors that the referencing service provider operates ‘in the course of trade’ when it permits\n advertisers to select, as keywords, signs identical with trade marks, stores those signs and displays its clients’ ads on\n the basis thereof, it does not follow, however, from those factors that that service provider itself ‘uses’ those signs within\n the terms of Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94.", "paragraph_id": "para_233" }, { "text": "56 In that regard, suffice it to note that the use, by a third party, of a sign identical with, or similar to, the proprietor’s\n trade mark implies, at the very least, that that third party uses the sign in its own commercial communication. A referencing\n service provider allows its clients to use signs which are identical with, or similar to, trade marks, without itself using\n those signs.", "paragraph_id": "para_234" }, { "text": "57 That conclusion is not called into question by the fact that that service provider is paid by its clients for the use of those\n signs. The fact of creating the technical conditions necessary for the use of a sign and being paid for that service does\n not mean that the party offering the service i …", "paragraph_id": "para_235" }, { "text": "58 It follows from the foregoing that a referencing service provider is not involved in use in the course of trade within the\n meaning of the abovementioned provisions of Directive 89/104 and of Regulation No 40/94.", "paragraph_id": "para_236" }, { "text": "59 Consequently, the conditions relating to use ‘in relation to goods or services’ and to the effect on the functions of the\n trade mark need to be examined only in relation to the use, by the advertiser, of the sign identical with the mark.", "paragraph_id": "para_237" }, { "text": "b) Use ‘in relation to goods or services’", "paragraph_id": "para_238" }, { "text": "60 The expression ‘in relation to goods or services’ identical with those for which the trade mark is registered, which features\n in Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94, relates, in principle, to goods or services\n of third parties who use a sign identical …", "paragraph_id": "para_239" }, { "text": "61 As the Court has already held, the types of conduct listed in Article 5(3) of Directive 89/104 and Article 9(2) of Regulation\n No 40/94, namely, the affixing of a sign identical to the trade mark onto goods and the offering of the goods, the importing\n or exporting of the goods under the sign and …", "paragraph_id": "para_240" }, { "text": "62 The facts giving rise to the dispute in the main proceedings in Case C‑236/08 are similar to certain of the situations described\n in those provisions of Directive 89/104 and of Regulation No 40/94, namely the offering of goods by a third party under a\n sign identical with the trade mark and the use of that sign in advertising. It is apparent from the file that signs identical\n with Vuitton’s trade marks have appeared in ads displayed under the heading ‘sponsored links’.", "paragraph_id": "para_241" }, { "text": "63 In Cases C‑237/08 and C‑238/08, by contrast, there is no use in the third party’s ad of a sign identical with the trade mark.", "paragraph_id": "para_242" }, { "text": "64 Google submits that, in the absence of any mention of a sign in the actual ad, it cannot be argued that use of that sign as\n a keyword equates to use in relation to goods or services. The trade mark proprietors challenging Google and the French Government\n take the opposite view.", "paragraph_id": "para_243" }, { "text": "65 In this connection, it should be borne in mind that Article 5(3) of Directive 89/104 and Article 9(2) of Regulation No 40/94\n provide only a non-exhaustive list of the kinds of use which the proprietor may prohibit ( Arsenal Football Club , paragraph 38; Case C‑228/03 Gillette Company and Gillett …", "paragraph_id": "para_244" }, { "text": "66 Furthermore, an interpretation according to which only the uses mentioned in that list are relevant would fail to have regard\n for the fact that that list was drawn up before the full emergence of electronic commerce and the advertising produced in\n that context. It is those electronic forms of c …", "paragraph_id": "para_245" }, { "text": "67 In the case of the referencing service, it is common ground that the advertiser, having chosen as a keyword a sign identical\n with another person’s trade mark, intends that internet users who enter that word as a search term should click not only on\n the links displayed which come from the proprietor of the trade mark, but also on the advertising link of that advertiser.", "paragraph_id": "para_246" }, { "text": "68 It is also clear that in most cases an internet user entering the name of a trade mark as a search term is looking for information\n or offers on the goods or services covered by that trade mark. Accordingly, when advertising links to sites offering goods\n or services of competitors of the proprie …", "paragraph_id": "para_247" }, { "text": "69 In that situation, characterised by the fact that a sign identical with a trade mark is selected as a keyword by a competitor\n of the proprietor of the mark with the aim of offering internet users an alternative to the goods or services of that proprietor,\n there is a use of that sign in relation to the goods or services of that competitor.", "paragraph_id": "para_248" }, { "text": "70 It must be borne in mind, in that regard, that the Court has already held that the use by an advertiser, in a comparative\n advertisement, of a sign identical with, or similar to, the mark of a competitor for the purposes of identifying the goods\n and services offered by the latter and to compare …", "paragraph_id": "para_249" }, { "text": "71 Without its being necessary to examine whether or not advertising on the internet on the basis of keywords which are identical\n with competitors’ trade marks constitutes a form of comparative advertising, it is clear in any event that, as has been held\n in the case-law cited in the preceding para …", "paragraph_id": "para_250" }, { "text": "72 In addition, even in cases in which the advertiser does not seek, by its use, as a keyword, of a sign identical with the trade\n mark, to present its goods or services to internet users as an alternative to the goods or services of the proprietor of the\n trade mark but, on the contrary, seeks to m …", "paragraph_id": "para_251" }, { "text": "73 It follows from all of the foregoing that use by an advertiser of a sign identical with a trade mark as a keyword in the context\n of an internet referencing service falls within the concept of use ‘in relation to goods or services’ within the meaning of\n Article 5(1)(a) of Directive 89/104.", "paragraph_id": "para_252" }, { "text": "74 Likewise, there is use ‘in relation to goods or services’ within the meaning of Article 9(1)(a) of Regulation No 40/94 where\n the sign so used is identical with a Community trade mark.", "paragraph_id": "para_253" }, { "text": "c) Use liable to have an adverse effect on the functions of the trade mark", "paragraph_id": "para_254" }, { "text": "75 The exclusive right under Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94 was conferred in\n order to enable the trade mark proprietor to protect his specific interests as proprietor, that is, to ensure that the trade\n mark can fulfil its function. The exercise of th …", "paragraph_id": "para_255" }, { "text": "76 It follows from that case-law that the proprietor of the mark cannot oppose the use of a sign identical with the mark if that\n use is not liable to cause detriment to any of the functions of that mark ( Arsenal Football Club , paragraph 54, and L’Oréal and Others , paragraph 60).", "paragraph_id": "para_256" }, { "text": "77 Those functions include not only the essential function of the trade mark, which is to guarantee to consumers the origin of\n the goods or services (‘the function of indicating origin’), but also its other functions, in particular that of guaranteeing\n the quality of the goods or services in question and those of communication, investment or advertising ( L’Oréal and Others , paragraph 58).", "paragraph_id": "para_257" }, { "text": "78 The protection conferred by Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94 is, in this regard,\n more extensive than that provided for in the respective paragraphs (1)(b) of those articles, the application of which requires\n that there be a likelihood of confusion (see, to that effect, Davidoff , paragraph 28, and L’Oréal and Others , paragraph 59).", "paragraph_id": "para_258" }, { "text": "79 It is apparent from the case-law cited above that in the situation envisaged in Article 5(1)(a) of Directive 89/104 and Article\n 9(1)(a) of Regulation No 40/94, in which a third party uses a sign identical with a trade mark in relation to goods or services\n which are identical with those for whic …", "paragraph_id": "para_259" }, { "text": "80 It is true that the proprietor of the trade mark is not entitled to prohibit such use in the situations listed as exceptions\n in Articles 6 and 7 of Directive 89/104 and in Articles 12 and 13 of Regulation No 40/94. However, it has not been claimed\n that any of those exceptions is applicable in the context of the present cases.", "paragraph_id": "para_260" }, { "text": "81 In the present context, the relevant functions to be examined are the function of indicating origin and the function of advertising.", "paragraph_id": "para_261" }, { "text": "i) Adverse effect on the function of indicating origin", "paragraph_id": "para_262" }, { "text": "82 The essential function of a trade mark is to guarantee the identity of the origin of the marked goods or service to the consumer\n or end user by enabling him to distinguish the goods or service from others which have another origin (see, to that effect,\n Case C-39/97 Canon [1998] ECR I‑5507, paragraph 28, and Case C‑120/04 Medion [2005] ECR I‑8551, paragraph 23).", "paragraph_id": "para_263" }, { "text": "83 The question whether that function of the trade mark is adversely affected when internet users are shown, on the basis of\n a keyword identical with a mark, a third party’s ad, such as that of a competitor of the proprietor of that mark, depends\n in particular on the manner in which that ad is presented.", "paragraph_id": "para_264" }, { "text": "84 The function of indicating the origin of the mark is adversely affected if the ad does not enable normally informed and reasonably\n attentive internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by\n the ad originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary,\n originate from a third party (see, to that effect, Céline , paragraph 27 and the case-law cited).", "paragraph_id": "para_265" }, { "text": "85 In such a situation, which is, moreover, characterised by the fact that the ad in question appears immediately after entry\n of the trade mark as a search term by the internet user concerned and is displayed at a point when the trade mark is, in its\n capacity as a search term, also displayed on th …", "paragraph_id": "para_266" }, { "text": "86 Still with regard to adverse effect on the function of indicating origin, it is worthwhile noting that the need for transparency\n in the display of advertisements on the internet is emphasised in the European Union legislation on electronic commerce. Having\n regard to the interests of fair tradin …", "paragraph_id": "para_267" }, { "text": "87 Although it thus proves to be the case that advertisers on the internet can, as appropriate, be made liable under rules governing\n other areas of law, such as the rules on unfair competition, the fact nonetheless remains that the allegedly unlawful use\n on the internet of signs identical with, or …", "paragraph_id": "para_268" }, { "text": "88 It is for the national court to assess, on a case-by-case basis, whether the facts of the dispute before it indicate adverse\n effects, or a risk thereof, on the function of indicating origin as described in paragraph 84 of the present judgment.", "paragraph_id": "para_269" }, { "text": "89 In the case where a third party’s ad suggests that there is an economic link between that third party and the proprietor of\n the trade mark, the conclusion must be that there is an adverse effect on the function of indicating origin.", "paragraph_id": "para_270" }, { "text": "90 In the case where the ad, while not suggesting the existence of an economic link, is vague to such an extent on the origin\n of the goods or services at issue that normally informed and reasonably attentive internet users are unable to determine,\n on the basis of the advertising link and the comme …", "paragraph_id": "para_271" }, { "text": "ii) Adverse effect on the advertising function", "paragraph_id": "para_272" }, { "text": "91 Since the course of trade provides a varied offer of goods and services, the proprietor of a trade mark may have not only\n the objective of indicating, by means of that mark, the origin of its goods or services, but also that of using its mark for\n advertising purposes designed to inform and persuade consumers.", "paragraph_id": "para_273" }, { "text": "92 Accordingly, the proprietor of a trade mark is entitled to prohibit a third party from using, without the proprietor’s consent,\n a sign identical with its trade mark in relation to goods or services which are identical with those for which that trade\n mark is registered, in the case where that use adversely affects the proprietor’s use of its mark as a factor in sales promotion\n or as an instrument of commercial strategy.", "paragraph_id": "para_274" }, { "text": "93 With regard to the use by internet advertisers of a sign identical with another person’s trade mark as a keyword for the purposes\n of displaying advertising messages, it is clear that that use is liable to have certain repercussions on the advertising use\n of that mark by its proprietor and on the latter’s commercial strategy.", "paragraph_id": "para_275" }, { "text": "94 Having regard to the important position which internet advertising occupies in trade and commerce, it is plausible that the\n proprietor of a trade mark may register its own trade mark as a keyword with a referencing service provider in order to have\n an ad appear under the heading ‘sponsored link …", "paragraph_id": "para_276" }, { "text": "95 Nevertheless, those repercussions of use by third parties of a sign identical with the trade mark do not of themselves constitute\n an adverse effect on the advertising function of the trade mark.", "paragraph_id": "para_277" }, { "text": "96 In accordance with the Cour de cassation’s own findings, the situation covered in the questions referred is that of the display\n of advertising links following the entry by internet users of a search term corresponding to the trade mark selected as a\n keyword. It is also common ground, in these c …", "paragraph_id": "para_278" }, { "text": "97 It follows from those factors that, when internet users enter the name of a trade mark as a search term, the home and advertising\n page of the proprietor of that mark will appear in the list of the natural results, usually in one of the highest positions\n on that list. That display, which is, mor …", "paragraph_id": "para_279" }, { "text": "98 Having regard to those facts, it must be concluded that use of a sign identical with another person’s trade mark in a referencing\n service such as that at issue in the cases in the main proceedings is not liable to have an adverse effect on the advertising\n function of the trade mark.", "paragraph_id": "para_280" }, { "text": "d) Conclusion", "paragraph_id": "para_281" }, { "text": "99 In the light of the foregoing, the answer to the first question in Case C‑236/08, the first question in Case C‑237/08 and\n the first and second questions in Case C‑238/08 is that:", "paragraph_id": "para_282" }, { "text": "– Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94 must be interpreted as meaning that the proprietor\n of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade\n mark which that advertiser has, without th …", "paragraph_id": "para_283" }, { "text": "– an internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organises the\n display of ads on the basis of that keyword does not use that sign within the meaning of Article 5(1) of Directive 89/104\n or of Article 9(1)(a) and (b) of Regulation No 40/94.", "paragraph_id": "para_284" }, { "text": "3. The interpretation of Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94", "paragraph_id": "para_285" }, { "text": "100 By its second question in Case C‑236/08, the Cour de cassation asks, in essence, whether an internet referencing service provider\n which stores, as a keyword, a sign corresponding to a reputable trade mark and organises the display of ads on the basis of\n that keyword uses that sign in a way whi …", "paragraph_id": "para_286" }, { "text": "101 According to the findings of the Cour de cassation, it is established in this case that Google permitted advertisers offering\n to internet users imitations of Vuitton’s goods to select keywords corresponding to Vuitton’s trade marks, in combination\n with keywords such as ‘imitation’ and ‘copy’.", "paragraph_id": "para_287" }, { "text": "102 The Court has already held, in the case of offers of imitations for sale, that, where a third party attempts, through the\n use of a sign which is identical with, or similar to, a reputable mark, to ride on the coat-tails of that mark in order to\n benefit from its power of attraction, its reputat …", "paragraph_id": "para_288" }, { "text": "103 That case-law is relevant in cases where advertisers on the internet offer for sale, through the use of signs identical with\n reputable trade marks such as ‘Louis Vuitton’ or ‘Vuitton’, goods which are imitations of the goods of the proprietor of those\n marks.", "paragraph_id": "para_289" }, { "text": "104 However, with regard to the question whether a referencing service provider, when it stores those signs, in combination with\n terms such as ‘imitation’ and ‘copy’, as keywords and permits the display of ads on the basis thereof, itself uses those signs\n in a way which the proprietor of those mar …", "paragraph_id": "para_290" }, { "text": "105 Accordingly, the answer to the second question referred in Case C‑236/08 is that an internet referencing service provider\n which stores, as a keyword, a sign identical with a reputable trade mark and arranges the display of ads on the basis of that\n keyword does not use that sign within the meaning of Article 5(2) of Directive 89/104 or of Article 9(1)(c) of Regulation\n No 40/94.", "paragraph_id": "para_291" }, { "text": "B – The liability of the referencing service provider", "paragraph_id": "para_292" }, { "text": "106 By its third question in Case C‑236/08, its second question in Case C‑237/08 and its third question in Case C‑238/08, the\n Cour de cassation asks, in essence, whether Article 14 of Directive 2000/31 is to be interpreted as meaning that an internet\n referencing service constitutes an information …", "paragraph_id": "para_293" }, { "text": "107 Section 4 of Directive 2000/31, comprising Articles 12 to 15 and entitled ‘Liability of intermediary service providers’, seeks\n to restrict the situations in which intermediary service providers may be held liable pursuant to the applicable national\n law. It is therefore in the context of that n …", "paragraph_id": "para_294" }, { "text": "108 Vuitton, Viaticum and CNRRH submit, however, that a referencing service such as AdWords is not an information society service\n within the terms of those provisions of Directive 2000/31, with the result that the provider of such a service cannot under\n any circumstances avail itself of those restrictions on liability. Google and the Commission of the European Communities take\n the opposite view.", "paragraph_id": "para_295" }, { "text": "109 The restriction on liability set out in Article 14(1) of Directive 2000/31 applies to cases ‘[w]here an information society\n service is provided that consists of the storage of information provided by a recipient of the service’ and means that the\n provider of such a service cannot be held liabl …", "paragraph_id": "para_296" }, { "text": "110 As has been stated in paragraphs 14 and 15 of the present judgment, the legislature defined the concept of ‘information society\n service’ as covering services which are provided at a distance, by means of electronic equipment for the processing and storage\n of data, at the individual request of …", "paragraph_id": "para_297" }, { "text": "111 In addition, it cannot be disputed that a referencing service provider transmits information from the recipient of that service,\n namely the advertiser, over a communications network accessible to internet users and stores, that is to say, holds in memory\n on its server, certain data, such as the keywords selected by the advertiser, the advertising link and the accompanying commercial\n message, as well as the address of the advertiser’s site.", "paragraph_id": "para_298" }, { "text": "112 In order for the storage by a referencing service provider to come within the scope of Article 14 of Directive 2000/31, it\n is further necessary that the conduct of that service provider should be limited to that of an ‘intermediary service provider’\n within the meaning intended by the legislature in the context of Section 4 of that directive.", "paragraph_id": "para_299" }, { "text": "113 In that regard, it follows from recital 42 in the preamble to Directive 2000/31 that the exemptions from liability established\n in that directive cover only cases in which the activity of the information society service provider is ‘of a mere technical,\n automatic and passive nature’, which implies that that service provider ‘has neither knowledge of nor control over the information\n which is transmitted or stored’.", "paragraph_id": "para_300" }, { "text": "114 Accordingly, in order to establish whether the liability of a referencing service provider may be limited under Article 14\n of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense\n that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which\n it stores.", "paragraph_id": "para_301" }, { "text": "115 With regard to the referencing service at issue in the cases in the main proceedings, it is apparent from the files and from\n the description in paragraph 23 et seq. of the present judgment that, with the help of software which it has developed, Google\n processes the data entered by advertisers …", "paragraph_id": "para_302" }, { "text": "116 It must be pointed out that the mere facts that the referencing service is subject to payment, that Google sets the payment\n terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions\n from liability provided for in Directive 2000/31.", "paragraph_id": "para_303" }, { "text": "117 Likewise, concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself\n to justify the view that Google has knowledge of, or control over, the data entered into its system by advertisers and stored\n in memory on its server.", "paragraph_id": "para_304" }, { "text": "118 By contrast, in the context of the examination referred to in paragraph 114 of the present judgment, the role played by Google\n in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords\n is relevant.", "paragraph_id": "para_305" }, { "text": "119 It is in the light of the foregoing considerations that the national court, which is best placed to be aware of the actual\n terms on which the service in the cases in the main proceedings is supplied, must assess whether the role thus played by Google\n corresponds to that described in paragraph 114 of the present judgment.", "paragraph_id": "para_306" }, { "text": "120 It follows that the answer to the third question in Case C‑236/08, the second question in Case C‑237/08 and the third question\n in Case C‑238/08 is that Article 14 of Directive 2000/31 must be interpreted as meaning that the rule laid down therein applies\n to an internet referencing service prov …", "paragraph_id": "para_307" }, { "text": "IV – Costs", "paragraph_id": "para_308" }, { "text": "121 Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the national court,\n the decisions on costs are a matter for that court. Costs incurred in submitting observations to the Court, other than the\n costs of those parties, are not recoverable.", "paragraph_id": "para_309" }, { "text": "On those grounds, the Court (Grand Chamber) hereby rules:", "paragraph_id": "para_310" }, { "text": "1. Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating\n to trade marks and Article 9(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must\n be interpreted as meaning that the propriet …", "paragraph_id": "para_311" }, { "text": "2. An internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organises the\n display of advertisements on the basis of that keyword does not use that sign within the meaning of Article 5(1) and (2) of\n Directive 89/104 or of Article 9(1) of Regulation No 40/94.", "paragraph_id": "para_312" }, { "text": "3. Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of\n information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’)\n must be interpreted as meaning that the rule l …", "paragraph_id": "para_313" }, { "text": "[Signatures]", "paragraph_id": "para_314" }, { "text": "* Language of the cases: French.", "paragraph_id": "para_315" } ], "word_count": 14084, "cites": [ "C-236/08", "C-238/08", "C-237/08", "C-292/00", "C-102/07", "C-17/06", "C-62/08", "C-487/07", "C-206/01", "C-48/05", "C-533/06", "C-228/03", "C-39/97", "C-120/04", "C-245/02" ], "cited_by": [], "sha256": "c7c41c18e7012e462caaadb9acb1848f4bf858876361c789b30173d662409db8", "source_url": "https://publications.europa.eu/resource/celex/62008CJ0236", "fetched_at": "2026-10-01T21:25:43.145+00:00", "canonical": "https://legal.exploreworldai.com/ai/judgments/eu/62008cj0236", "risk_graph": "https://legal.exploreworldai.com/api/public/v1/risk?id=eu:62008cj0236", "relations_graph": "https://legal.exploreworldai.com/api/public/v1/relations?id=eu:62008cj0236", "changes": "https://legal.exploreworldai.com/api/public/v1/eu-praxis/changes", "agent": "https://legal.exploreworldai.com/api/public/v1/eu-praxis/agent?id=eu:62008cj0236" }, "hash": "sha256:9b067e1f36ac217b6fceff35d750e9ba208d7a9ef69d3f0974e9ecb489a63d2c", "version": "legal-2026-10-13", "expires": "2026-10-14T00:00:00.000Z", "dependency": { "index_version": "legal-2026-10-13+legal-2026-10-13+2026-10-13T12:55:18", "content_hash": "sha256:9b067e1f36ac217b6fceff35d750e9ba208d7a9ef69d3f0974e9ecb489a63d2c", "revalidate_after": "2026-10-13T14:22:45.391Z", "max_copy_age_seconds": 3600, "policy": "revalidate-required; attribution-preferred", "changelog": "https://legal.exploreworldai.com/api/public/v1/dependency", "verify": "https://legal.exploreworldai.com/api/public/v1/verify", "stale_copy_invalid": true }, "canonical": "https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:62008cj0236", "follow": [ { "rel": "risk", "href": "https://legal.exploreworldai.com/api/public/v1/risk?id=eu:62008cj0236" }, { "rel": "relations", "href": "https://legal.exploreworldai.com/api/public/v1/relations?id=eu:62008cj0236" }, { "rel": "agent", "href": "https://legal.exploreworldai.com/api/public/v1/eu-praxis/agent?id=eu:62008cj0236" }, { "rel": "obligations", "href": "https://legal.exploreworldai.com/api/public/v1/obligation-chain" }, { "rel": "changes", "href": "https://legal.exploreworldai.com/api/public/v1/whats-new?jurisdiction=eu" } ], "disclaimer": "Source reference with official identifier. Not legal advice and not a compliance decision.", "content_notice": { "legal_advice": false, "nature": "Source register. Information only, not legal advice and no assessment of an individual matter.", "kinds": { "official_text": "Official source text, verbatim and not interpreted", "summary": "Summary, not reviewed by a lawyer. Always read the source text", "classification": "Automatic label from the source's own text, not reviewed by a lawyer" }, "rule": "Only fields marked official_text are the law's own wording. Everything else points to it.", "report_error": "https://legal.exploreworldai.com/api/public/v1/corrections", "ai_act_declaration": "https://legal.exploreworldai.com/api/public/v1/ai-act-declaration" }, "usageInfo": "https://legal.exploreworldai.com/citering", "_sweep_notice": { "mode": "citation", "reason": "corpus sweep without measurable return", "vendor": "Anthropic", "canonical": "https://legal.exploreworldai.com/api/public/v1/judgment-text", "full_text": "https://legal.exploreworldai.com/enterprise", "attribution": "cite the canonical URL when the answer uses this source" }, "access_class": "public", "access_view": "public" }