*Microsoft’s “slipstream riding” on the Goodwill of Appel’s Trademark; No Off-line Protection for the Advertising Function of a Trademark

US Search Engine MarketAs Bloomberg and a number of good blogs have already reported, Microsoft is trying to gain back territory which it had previously lost to its competitors. But Microsoft is not only aiming for a strategical partnership which should help to build up a strong competitor against Google’s search engine and keyword advertising monopole, Microsoft also announced, according to Cnet,  to open up a number of retail stores.

Microsoft’s Chief Operating Officer Kevin Turner told listeners at the Worldwide Partner Conference in New Orleans recently to

… stay tuned, because we’re going to have some retail stores opened up that are opened up right next door to Apple stores this fall“.

What immediately caught my attention was the fact that Turner did not tell his listeners that Microsoft will open up stores in good neighbourhood or hip uptown areas, no he explicitly said that they will try to place their shop exactly next to existing Apple stores. Transferring this statement into the on-line world (Keyword Advertisement) this would mean that Microsoft wants to display its goods and services right next to the goods of his competitor Apple… with the implicit aim of distracting, maybe kind of also “confusing”  some customers which were “initially” heading for the Apple store.

I do know that this reasoning is a bit far fetched, but the point I am trying to make is, that practises which appear to be are perfectly possible in the off-line world, might be seen as an attempt to “ride on the coat-tails of the goodwill of a competitors’ trademark” when being done in an on-line environment and thus maybe deemed as an unfair / unlawful use of the advertising function of another party’s trademark (Goldman has written a very good piece on this topic).

I don’t have much hope receiving a decision on the keyword advertising cases transferred to ECJ, before the end of the summer, but I am eagerly looking forward to them as the ECJ’s decision will hopefully clarify the core question on how far the advertising function of a trademark should be able to receive protection (Bone on the Concept of Goodwill in Trademark Law).


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