Many great articles have been published on the topic of keyword advertising during the last couple of months, three of which are especially recommended for the readers of this blog:
- Bednarz, Keyword Advertising Before The French Supreme Court and Beyond – Calm At Least After Turbulent Times for Google and Its Advertising Clients, IIC 2011, 641.
Bednarz in detail analyses recent French decisions in the light of the ECJ’s Google France decision and reaches the conclusion that, although the French courts were well-known for not missing a chance to find Google or its advertisers guilty on whatever legal matter (trademark law, law of unfair competition, tort law) was presented to them, this apparently has changed.
- Kulk, Search Engines Searching for Trouble? – Comparing Search Engine Operator Responsibility for Competitive Keyword Advertising Under EU and US Trademark Law, July 2011.
Kulk (Delft University of Technology; University of Amsterdam – Institute for Information Law) reaches across the Atlantic and not only provides a splendid and short introduction into the topic, but also compares in detail the principles which the courts on both sides of the atlantic are following. While jurists from the US show little sympathy for the almost Prussian fixation of the ECJ on the requirements of trademark use, jurists from the Old World shake their heads in disbelief over the only legal concept that appears to be even more vague than the ECJ’s concept of the trademark function: the initial interest confusion.
- Bozbel, Benutzung der Marke als Domain-Name, Metatag and Keyword im Türkischen Recht, MarkenR 2011, 145.
While the US and European legal systems mainly left it to their courts to deal with the topic of keyword advertising, Turkey has opted for the Utha appraoch, explicitly forbidding the booking of a third party trademark as a keyword (149). Bozbel in his article however does not only cover the topic of keyword advertising, but provides a short and concise introduction into Turkish trademark law and its views regarding, domain names, Meta Tags (*sigh*) and keyword advertising.
For further articles published in which the author had a chance to participate or which he wrote – mainly😉 – on his own, please check the publications tab.
Thanks for this one, as well as for your earlier post referring to my Helsinki Law Review paper https://austrotrabant.wordpress.com/2011/07/04/instant-preview-now-enabled-almost-by-default/ . (I’m referring to that post so my apologies for the obscureness of this reply.) Sorry for the late response.
The remark about my example (“not a Suzuki Swift!” etc) you made was obviously a good one. The point of that (as I said in the paper, hypothetical) example was that disclaimers such as the one in the example would probably fulfil the idea of “appropriate clarifying indications” promoted by (inter alia) the Bergspechte court. Yet you’re right that Google would probably not be happy with such references.
Then again yes, the example I used would not stand the “test” of the recent national Eis.de ruling as the trademark is mentioned in the ad. In my opinion the Eis.de standard is a smart one, although it doesn’t “catch” indirectly confusing expressions such as “We have the exact product you are looking for!” when they don’t explicitly refer to the trademark.