Posts Tagged 'Suchwortwerbung'

*Where To Draw The Line? The Main Question Left After Google France

More than half a year after the ECJ published its decisions in Google France a number of questions still remain. While some questions might be answered by the Interflora reference (e.g. Art 5 (2) TMD), others will most probably remain open.

One question that will for sure remain is HOW an ad must be drafted so as not to have an adverse effect on the function of indicating origin. The ECJ ruled that ads must not be misleading or vague to such an extent that users might – incorrectly- assume a non-existing financial connection between the advertiser and the trademark used as a keyword to trigger the ad.

On the other hand, the court also expressed that Keyword Advertising per se does not have an adverse effect on the function of indicating origin. This means that Keyword Advertising in general has to be admissible and thus not infringing.

But where to draw the line? To me it seems that the border between ‘vague‘ and ‘not infringing‘ is a difficult one and that the courts need to have the discretionary powers to decide upon it.  When doing so, the courts may opt for either a TM-owner-friendly approach, a neutral position, or for an advertiser-friendly approach. Continue reading ‘*Where To Draw The Line? The Main Question Left After Google France’

*One To Cure Them All? – Is The ECJ Using The Very Same Formula To Answer All Questions Related To Keyword Advertising?

Disclaimer: This is a 100% geeky trademark law post. Some readers might find it a bit difficult to understand… 😉

When analysing the ECJ’s most recent keyword advertising decision Portakabin I was surprised to see that the very same formula the court first used in Google France to define if the function of indicating origin got adversely affected in respect to Art 5 (1) lit. a

84: 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.


Continue reading ‘*One To Cure Them All? – Is The ECJ Using The Very Same Formula To Answer All Questions Related To Keyword Advertising?’


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