Trade Mark Use in Keyword Advertisements in the United States and European Union

Trade Mark Use in Keyword Advertisements in the United States and European Union

 

Title
Trade Mark Use in Keyword Advertisements in the United States and European Union
Author
Kuo-Lien Hsieh
Keywords
Keyword Advertisements, Trade Mark Infringement, Trade Mark Use, Likelihood of Confusion
Abstract
The rapid development of online keyword advertising has triggered a series of
trade mark disputes in the United States and Europe. This Article analyses the legal
disputes concerning the unauthorised use of trade marks in the keyword advertisements,
in particular those in Rescuecom Corp. v. Google Inc. in 2009 and in
L’Oréal SA & Ors v. eBay International AG & Ors in 2011. As to the trade mark
infringements regarding keyword advertisements, those sued by trademark owners
include search engine operators, online marketplace operators, and those involved
in promoting online sales of products bearing signs identical or similar to third
party trade marks. As regards the types of infringement concerned, those who make
unauthorised use of trade marks may be held responsible for primary infringement
in certain circumstances, and in the others, the infringers may be held responsible
for joint torfeasorship or contributory infringement. As to what constitutes trade
mark infringement, the key standards include “use in commerce (or in the course of
trade)” and “likelihood of confusion”, which can be found in the US law and in the EU trade mark regime. This Article focuses its attention on the issues concerning
the first standard, which have proved to be extremely controversial as far as the
Rescuecom and L’Oréal cases are concerned.
Abstract Article

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