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“But I Still Haven’t Found What I’m Looking For” – The ECJ and The Use of Competitor’s Trademark in Search Engine Keyword AdvertisingJyrkkiö, Lassi
When it comes to use of competitor’s trademark in keyword advertising within the EU, legal certainty has hitherto been lacking. The European Court of Justice as the supreme interpreter of EU law has recently delivered its first corresponding preliminary rulings which were expected to clarify the situation. This writing assesses how well the ECJ has succeeded, with an aim to identify the current de facto state of the law.
According to the ECJ, use of competitor’s trademark is allowed per se. Two potentially actionable situations need to be identified. Firstly, the use amounts to trademark infringement when the advertisement does not enable “normally informed and reasonably attentive internet users” to distinguish whether the ad emanates from an entity actually affiliated with the trademark. Secondly, use of competitor’s trademark can infringe the so-called reputable marks without any confusion for the user: the exact conditions for such a situation remain somewhat uncertain.
- HLR 2011/1