| Abstract [eng] |
Trademark Use for Keyword Advertising SUMMARY Trade mark owners complain about the use of their trade marks as keywords. Potential customers might be confused, believing that the advertiser is in some way connected with the trade mark owner. The function of indicating the origin of the mark is adversely affected if the ad does not enable normally informed and reasonably attentive internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by the ad originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party. Article 14 of Directive 2000/31 (Directive on electronic commerce), provides that the exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Owner of a trade mark with a reputation is entitled to prevent a competitor from advertising on the basis of a keyword corresponding to that trade mark, which the competitor has, without the proprietor’s consent, selected in an internet referencing service, where the competitor thereby takes unfair advantage of the distinctive character or repute of the trade mark (free-riding) or where the advertising is detrimental to that distinctive character (dilution) or to that repute (tarnishment). Following the Google France and Google decision of the Court of Justice of the European Union (joined Cases C‑236/08 to C‑238/08 Google France and Google), Google decided to change its policy in continental Europe. Before the policy change, trademark owners could notify Google of their trademarks. Google then blocked these trademarks from being purchased by third-party advertisers as a keyword. On September 14, 2010, Google relaxed its policy on who was allowed to purchase a trademarked keyword to trigger ads across all continental European countries. |
