Google's AdWords And AdSense Trademark Policy And Trademark Violations

A dominant portion of Google Incorporation’s revenue is generated through online advertisements. However, online advertisement is a complicated process that requires sound dealing of both technical and legal issues.

For instance, online advertisements frequently appear on blogs and websites that steal contents of others. At times these advertisements also appear upon spam blogs and content farming blogs who openly violate copyright of others.

Of course, Internet intermediaries like Google cannot be expected to pre screen such contents or keep a close watch upon such contents. However, Internet intermediaries’ liability in India, like other places, requires companies like Google to take down offending contents once Google is sufficiently notified in this regard.

For instance, if Google fails to comply with legally sustainable Indian demands, it would amount to non exercise of cyber law due diligence in India. This would result in the denial of “safe harbour” provisions to Google. Cyber due diligence for Indian companies is now well established and companies, both foreign and Indian, must comply with the same. In this light we have to analyse the trademark violation cases arising in India.

Perry4Law and Perry4Law Techno Legal Base (PTLB) believe that Google must address trademarks violations in India more seriously. Similarly, online advertisements of Google placed on copyright violating contents further raises additions legal obligations upon Google.

Google Incorporation’s Indian strategy to counter legal disputes in India should be formulated that must cover various legal issues. Intellectual property rights (IPRs) violation issues as well as cyber law compliances must be essential part of such strategy. Internet intermediary liability and Indian safe harbour provisions must also be part of the same.

Recently a case has been filed to the competition commission of India against Google citing discriminatory trade practices related to its AdWords program. It has been alleged by the complainant that Google has abused its dominance by engaging in discriminatory and retaliatory practices relating to AdWords.

It is important to analyse Google’s AdWords and AdSense trademark policy in this regard. Google claims to understand the importance of and respect the trademarks of others. Google’s AdWords Terms and Conditions prohibit intellectual property infringement by advertisers. Advertisers are responsible for the keywords they choose to generate advertisements and the text that they choose to use in those advertisements.

Google claims that it takes allegations of trademark infringement very seriously and, as a courtesy, it investigates matters raised by trademark owners. Trademarks are territorial and apply only to certain goods or services. Therefore, different parties can own the same mark in different countries or different industries. Of course, exceptions to this rule are also there and a single person or company may have a trademark in multiple jurisdictions. If you are filing a trademark violation complaint with Google, kindly provide adequate information as to where the mark is valid and for what goods or services it has been registered.

This would help Google in processing complaint in a more effective manner. If you are providing information in a proper manner, chances are great that your trademark violation complaint would be entertained by Google.

Before making a complaint to Google, kindly keep the following in mind:

(1) The trademark owner doesn't need to be a Google AdWords advertiser in order to send a complaint.

(2) Any such investigation will only affect ads served on or by Google.

(3) Google's trademark policy does not apply to search results. Google’s investigations only apply to sponsored links. For trademark concerns about websites that appear in Google search results, the trademark owner should contact the site owner directly.

(4) In the case of an AdSense for Domains trademark complaint, an investigation will affect only the participation of the domain name in question in Google’s AdSense for Domains program.

(5) Because Google is not a third-party arbiter, it encourages trademark owners to resolve their disputes directly with the advertisers, particularly because the advertisers may have similar ads running via other advertising programs.

If you wish to file a trademark violation complaint with Google, you can file the same here. Kindly avoid sending direct mail to Google staff as you would be redirected to the form segment in such cases. It would only cost you time, money and efforts and duplication of labour. We hope stakeholders would find this work useful.

Online Copyright Infringement Liability Limitation Act Of US

The Online Copyright Infringement Liability Limitation Act (OCILLA) of United States (US) aims to amend the title 17, United States Code, to implement the World Intellectual Property Organisation (WIPO) Copyright Treaty and Performances and Phonograms Treaty, and for other purposes, as part of the Digital Millennium Copyright Act (DMCA).

The OCILLA is a US Federal Law that creates a “Conditional Safe Harbor” for Online Service Providers (OSP). These OSPs are also known as Internet Intermediaries or Intermediaries in some Countries and this category covers players like Internet Service Providers (ISPs), Search Engines, Blogging Platforms, E-Commerce Portals, Cyber Café, etc.

Safe Harbour protection is generally extended to Intermediaries from direct copyright infringement and potential secondary liability for the infringing acts of others. OCILLA was passed as a part of the 1998 DMCA and is sometimes referred to as the "Safe Harbor" provision or as "DMCA 512" because it added Section 512 to Title 17 of the United States Code. By exempting intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

The 1998 DMCA was the U.S. implementation of the 1996 WIPO Copyright Treaty (WCT) directive to “maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information” when updating copyright norms for the digital age. In the context of Intermediaries, OCILLA attempts to strike this balance by immunizing them for copyright liability stemming from their own acts of direct copyright infringement (as primary infringers of copyright), as well as from the acts of their users (as secondary infringers of copyright), provided that Intermediaries comply with two general requirements protecting the rights of authors.

First, the Intermediaries must “adopt and reasonably implement a policy” of addressing and terminating accounts of users who are found to be “repeat infringers.” Second, the Intermediaries must accommodate and not interfere with “standard technical measures.” Intermediaries may qualify for one or more of the Section 512 safe harbors under § 512(a)-(d), for immunity from copyright liability stemming from: transmitting, caching, storing, or linking to infringing material. An Intermediaries who complies with the requirements for a given Safe Harbor is not liable for money damages, but may still be ordered by a court to perform specific actions such as disabling access to infringing material.

In addition to the two general requirements listed above, all four safe harbors impose additional requirements for immunity. The safe harbor for storage of infringing material under § 512(c) is the most commonly encountered because it immunises Intermediaries that might inadvertently host infringing material uploaded by users.

Taken as a whole, OCILLA’s passage represented a victory for telecom and Internet related industry groups over powerful copyright interests who had wanted service providers to be held strictly liable for the acts of their users. However copyright owners also obtained concessions. In addition to the general and specific preconditions on the created immunity, OCILLA requires Intermediaries seeking an immunity to designate an agent to whom notices of copyright infringement can be sent, and to disclose information about those users who are allegedly infringers.

Section 512(c) applies to Intermediaries that store infringing material. In addition to the two general requirements that Intermediaries comply with standard technical measures and remove repeat infringers, § 512(c) also requires that the OSP: 1) not receive a financial benefit directly attributable to the infringing activity, 2) not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.
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Some have claimed that the DMCA-embedded concepts of direct financial benefit, interference with standard technical measures, and the legislative red flag test for identifying infringing material are significantly challenged by the explosion of user-generated content unleashed by Web 2.0 technologies.

The European Union's Electronic Commerce directive, Article 14, contains similar notice and takedown provisions. France's Digital Economy Law ("Loi relative à l'économie numérique") is an example of an implementation of this directive, as is Finland's "Laki tietoyhteiskunnan palvelujen tarjoamisesta." In Korea, the analogous law is Section 102 (Limitation of OSP Liabilities) and Section 103 (Takedown) of Copyright Law of Korea.

In the Indian context, the Indian Copyright Act 1957 along with the Information Technology Act 2000 deals with Cyber Law Due Diligence and Intermediaries Liability for Online Copyright Violation issues.