Journal Article

The online advertising free-riding free-for-all

Darren Meale

in Journal of Intellectual Property Law & Practice

Volume 3, issue 12, pages 779-787
Published in print December 2008 | ISSN: 1747-1532
Published online October 2008 | e-ISSN: 1747-1540 | DOI: https://dx.doi.org/10.1093/jiplp/jpn185
The online advertising free-riding free-for-all

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Legal context

The article reviews the case law in the USA, France, Germany, and the UK; on the use of third party trade marks to trigger the display of sponsored search advertisements on search engines.; The article; analyses the application to this practice of the ECJ's requirement in Arsenal v Reed that offending uses of trade marks must affect their function, in particular their essential function as a badge of origin, and considers the effect of the recent ECJ decision in O2 v H3G.

Key points

The legality of the practice is a grey area in most jurisdictions, with few coming to any firm and consistent conclusions.; In Europe, member states have differing views, despite the presence of harmonized trade mark laws.; The best authority available; in the UK is arguably weak and given the conclusion of the ECJ in O2 v H3G may not now be correct.; In any case, the French Cour de Cassation has referred pertinent questions on the practice to the ECJ, and so an answer should be coming, if not for a while.

Practical significance

Keyword advertising is big business for search engines and their advertisers, with the majority of online advertising budgets spent in this way.; But brand owners are not happy with third parties using their trade marks in the hope of increasing custom, while potentially diverting it from the trade mark owner.

Journal Article.  6805 words. 

Subjects: Arbitration ; Intellectual Property Law

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