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29 April 2013
The liability of internet search engines has been the topic of a number of judicial decisions in Argentina (for further details please see "Court issues new judgment on liability of search engines"). However, a recent judgment differs from those that preceded it, both in that the protection of personal non-transferable rights was not claimed (prior cases have dealt with people who found their name or image related to pornographic websites (and other sites with similar content) against their will) and in relation to the nature of the affected rights.
In Los Grobo Agropecuaria SA v SOLO10 COM SA the court considered the unauthorised use of a registered trademark in the context of an internet search, focusing specifically on proprietary rights.
Los Grobo Agropecuaria SA, a renowned domestic company, owns the trademark GRUPO LOS GROBO. After becaming aware that this trademark was being improperly used on the website www.crediagro.com, it requested that a preliminary injunction be issued against:
Los Grobo Agropecuaria SA also filed a complaint seeking a preliminary injunction against Google Inc and Google Argentina SRL, in their capacity as providers of the search service that directed users to the infringing website.
The first instance judge granted the requested preliminary injunction.
Google Inc and Google Argentina SRL appealed, arguing that (at that point in time) a search performed on Google that included the term 'crediagro.com' would not produce results containing the trademark GRUPO LOS GROBO. Furthermore, they asserted that when the search was performed with the plaintiff's trademark or trade name (ie, Los Grobo Agropecuaria SA), users were not directed to the website www.crediagro.com.
Google additionally held that it was not related to the commercial conflict dealt with in the case, which involved different, specifically identified parties. It also argued that the fact that one of those parties had employed a digital medium to use the plaintiff's trademark did not make the search engine a party to the case. In this sense, it also pointed out that if the other defendants - which were the only parties that could eliminate the content at issue from their respective websites - were to erase those references to the plaintiff or cease using its trademark, no result 'related' to the plaintiff would appear in the search engines.
On July 3 2012 the Federal Court of Appeals in Civil and Commercial Matters, Division 3, revoked the preliminary injunction against Google Inc and Google Argentina SRL, holding that:
"it is true that this Court has admitted preliminary injunctions against the so-called 'search engines' which bear some similarity to what is claimed in this case... Those cases involved rights related to the plaintiffs' privacy or intimacy… The situation at issue has different aspects which distinguish it from the cases cited in the prior paragraph… the rights claimed by the party requesting the preliminary injunction are not related to privacy or intimacy issues, but rather to proprietary issues."
The court also held that:
"there is no reason to conclude in the preliminary stage of these judicial proceeding that the 'searcher' activity implies a 'trademark use' prohibited by the legal system in force as regards intellectual property, specially, those rules which acknowledge the right of exclusivity to the owner of the trademark registration."
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