Convergences and Development
Edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly
Chapter 10: The use of trade marks in keyword advertising: Developments in CJEU and national jurisprudence
The use of trade marks in keyword advertising has been one of the 'hottest' issues in intellectual property law for several years. This is mostly due to the enormous economic importance of keyword advertising. However, the challenge keyword advertising poses to the application of the law has garnered attention as well. This entirely new way of using trade marks was not anticipated in the European Trade Mark Directive (TMD), nor in the Community Trade Mark Regulation (CTMR). It has provoked a discussion concerning the core concepts of trade mark law. In the early stages of the debate, the issue most vehemently discussed centered around the question whether the use of a trade mark as a keyword in search advertising constituted a 'use', 'trade mark use' or 'use as a trade mark' thereby falling within the scope of (harmonized) trade mark law, or whether the use of a trade mark as a keyword could only be legally addressed under (national) unfair competition or tort law. The practice of keyword advertising has also given rise to a fundamental discussion about the legally protected functions of a trade mark (under Art 5(1) TMD) and the extent to which interest balancing should occur within the standard trade mark infringement analysis. In its initial rulings on the matter, the Court of Justice of the European Union (hereinafter: CJEU), devised a specific test for assessing a likelihood of confusion and/or an adverse effect on the origin function of a mark.
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