Research Handbooks in European Law series
Edited by Andrej Savin and Jan Trzaskowski
Chapter 6: Trade mark law and advertising keywords
In recent years, the main testing ground for the relationship between trade marks and the Internet has been in the context of advertising keywords. As well as displaying algorithmically generated ‘natural’ results, search engines have offered third parties the opportunity to display advertisements for their goods or services, labelled ‘sponsored links’, in a prominent position when consumers search for keywords which the third parties have paid for.The difficulty in trade mark terms is that search engines such as Google are willing to sell other people’s trade marks to the highest bidder, meaning that the third party advertisement will be displayed in response to the inputting of the trade mark. To take a hypothetical example, if Adidas bought NIKE as a keyword, an advertisement for Adidas would appear each time a consumer searched for the term term ‘NIKE’. This practice raises complex questions of principle which reflect arguments occurring at a more general level in trade mark law: while there is arguably something distasteful about profiting from someone else’s trade mark, either through selling it, or through attracting consumers to one’s goods by using it, it is doubtful how many Internet users will be confused by this practice. Indeed, in the absence of confusion, it is difficult to see what form of harm the trade mark owner will suffer, except for being forced to pay more to bid for his own trade marks as keywords.
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