I feel sorry for the French. When it comes to the Digital Age, they just seem to not get it. On multiple occasions, they have proven that they don’t get online advertising, they don’t get how trademarks are used and diffused in today’s connected culture, and they just seem to not get the Internet in general.

In the first case, a French court “ruled that Google must refrain from using the trademarks of European resort chain Le Meridien Hotels and Resorts to trigger keyword ads.” The decided that Google was infringing on Le Meredien’s trademark by allowing its rivals to bid on the keywords “Le Meridien” for search results. In another case, “Louis Vuitton previously won a lawsuit… after [Google] allowed retailers selling fake LB wares to buy keywords like ‘Louis Vuitton replicas’ and ‘Louis Vuitton fakes.’”

The Internet has opened up unprecedented new business methods in many areas, but specifically in advertising. One of the primary benefits of online advertising is the ability to target advertisements to users based on specific characteristics. In general, this could be the user’s location or browser history. However, specifically for search engines, they can target advertisements next to the search results based on the search query. Google is famous amongst consumers for its products, such as Gmail or Google search or Google Earth, but its $116 billion market capitalization is based on its incredible ability to effectively operate its profitable advertising system. Through the aforementioned decisions, the French have shown that they are trying to apply outmoded regulatory models to the online world and that these models just aren’t translating well.

The purpose of trademarks is to avoid consumer confusion: use of a trademark “constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods.” If the advertisement used a trademark phrase, that would be trademark infringement. But if a knockoff manufacturer wants to show an advertisement when “Louis Vuitton” is search for, how is that possibly infringement? If I want to buy up all of the inventory for the keyword “Yale” with advertisements for another institution of higher learning 150 miles to the northeast, would that be trademark infringement (if I didn’t use its trademarked name)?

The problem is that courts and governments in general have the ability to restrict innovation without really understanding it. These cases remind me of when Senator Ted Stevens received an iPod as a gift from his daughter and changed his mind about legislation in front of him as chairman of the Senate Commerce Committee. If the French courts had advertised on Google, or at least were more Internet savvy, would they understand how their rulings were so out of touch with online advertising and modern technology? One would think that courts and government agencies like the USPTO would be able to turn to expert analysts, but maybe they aren’t doing so enough or effectively.

To be fair, it’s not just the French. I should really amend my first sentence to say that I feel sorry for governments around the world, but through a series of boneheaded decisions the French have led the charge in proving just how far governments are in over their heads. We’re seeing the same signals that we’ve seen before with other areas of intellectual property such as patents: the old ways of regulation don’t translate well to the online world. Is it reasonable to expect governments to become experts in all areas of technology? Maybe not, but if they’re going to continue to hold such power over progress, we should continue to seek solutions.