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The Use of Trade Marks in Keyword Advertising
van der Laan, N.
2020
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van der Laan, N. (2020). The Use of Trade Marks in Keyword Advertising.
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Abstract
The use of trade marks of competitors as keywords in search engine advertising (most notably, “Google Ads”) has caused discussion among courts and commentators all over the world. They have faced the difficulty of applying traditional trade mark law to this new form of trade mark use as a targeting tool instead of an indication of origin. This dissertation examines case law from the CJEU and national courts dating from the beginning of keyword advertising until the present. It analyses the impact of keyword advertising on the development of the infringement criteria in European trade mark law. To this end, the theoretical foundations of trade mark law and the relevant trade mark doctrines are examined. A comparison with US trade mark law completes the picture. The topic is furthermore researched from the angle of unfair competition law and laws on secondary liability.
The analysis demonstrates a shift by the CJEU from a strict application of the infringement criteria towards a contextual approach which leaves room for a balance of the interests of the different market players. This flexibility enables national courts to reach fair outcomes but also has its drawbacks. It is argued that reliance on the trade mark functions as a limitation to trade mark protection lacks a legal basis and results in inconsistency and legal uncertainty. Legislative solutions are proposed and concrete suggestions are made for interpreting the existing infringement provisions in various keyword advertising scenarios. The topic has not lost its relevance over the years. The application of the principles developed in keyword advertising cases can recently be seen more frequently in cases concerning lists of competing products on online market places (e.g. Amazon).
