The Use of Trade Marks in Keyword Advertising. Developments in ECJ and National Jurisprudence
Nicole van der Laan
European Patent Institute (EPI)
April 5, 2012
Lee, Nari/et al. (ed.): Intellectual Property, Unfair Competition and Publicity – Convergences and Development (EIPIN Series). Cheltenham, UK/Northampton, MA, Edward Elgar, 2014, pp. 231-286
Max Planck Institute for Intellectual Property & Competition Law Research Paper No. 12-06
The use of trade marks in keyword advertising has been one of the ‘hottest’ issues in intellectual property law for several years. This entirely new way of using trade marks as a targeting tool has provoked a discussion concerning the core concepts of trade mark law. This chapter discusses the issues of ‘trade mark use’ (section 5), the likelihood of confusion test (section 6), the protected functions of a trade mark (section 7), the protection of reputable marks (section 8), and the limitations to trade mark rights (section 9) in the context of keyword advertising. First, this paper will illuminate the functioning of keyword advertising and the various interests at stake (section 2). Thereafter, the structure of Art 5 TMD, as well as the underlying rationales and policy concerns of trade mark law will be addressed (sections 3 and 4). In addition to trade mark law, unfair competition law issues will briefly be pointed out (section 10). Furthermore, a number of national court decisions applying the guidance provided by the ECJ will be analyzed (section 11). The chapter concludes by arguing an approach towards the use of trade marks in keyword advertising which takes into account the freedoms of information and competition and which focuses on the prevention of consumer confusion (section 12).
Number of Pages in PDF File: 51
Keywords: advertising, AdWords, trade mark law, trade mark directive, trade mark use, likelihood of confusion, initial interest confusion, trade mark functions, origin function, advertising function, investment function, freedom of information, competition, free-riding, dilution, limitations
Date posted: May 16, 2012 ; Last revised: March 10, 2015
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