Advertising keywords: beyond distinctive signs
Under French law, the unauthorized sale of show tickets constitutes a criminal offense punishable by a fine of € 15,000; a penalty increased to a fine of € 30,000 in the event of a repeat offense (art. 313-6-2 of the Criminal Code). The main objective of this provision is “to fight against the organization of an artificial increase in the prices of tickets for access to these events and shows” (Conseil Constitutionnel, Decision 2018-754 QPC, December 14, 2018: JORF n° 0290 of December 15, 2018, t. n ° 82; NOR: CSCX1834362S; legifrance.gouv.fr).
PRODISS, the national union of producers, broadcasters, festivals, and musical and performance venues, monitors proper compliance with this legal provision. PRODISS noted that via its advertising network, Google promoted advertisements for sales of show tickets linked to sites not authorized by the producers of the shows concerned. For instance, PRODISS demonstrated that the operators of “stubhub.fr” and “viagogo.fr” were making advertisements on “Google.fr” for the sale of tickets without authorization from the producers. PRODISS sued Google to prohibit the latter from offering its advertising service to any person:
“Who is not able to justify in writing, before the publication of an advertisement for the marketing of tickets, or the provision of means for this marketing, authorization (i) from the producer(s) of the show(s) concerned when the advertisement relates to one or more shows designated in the advertisement; or (ii) all the producers when the advertisement generally relates to a ticket marketing service or the provision of means for such marketing “.
By judgment of October 15, 2020, the Paris judicial court of first instance considered that “by providing this advertising service to professionals, who offer tickets for shows for sale even though they do not have the authorization of their producer or from their organizer to this end, Google Ireland has engaged its liability towards these producers or organizers, represented by their union, whose text above aims, in particular, to protect heavy investments.” The economic nature of the decision is apparent: “Indeed, the development of a parallel market which increases the cost of tickets for consumers is particularly harmful to the producers and organizers of these events”.
As a result, the Paris Court prohibited Google from authorizing the purchase of specific keywords (purchase/sale, tickets/tickets, and show/concert) “for any publication of an advertisement, intended for the public located on French territory (…) for the sale of show tickets, to any natural or legal person who does not have the written authorization of the producer(s) of the show(s) concerned by the advertisement” (Paris Judicial Court, 3rd ch., 1st sect., October 15, 2020: Legalis.net).