February 20, 2009

Is keyword advertising lawful? A new reference for a preliminary ruling to the European Court of Justice

In a dispute between Dutch companies Portakabin and Primakabin over the use of a trademark through Google AdWords (C-558/08), five questions are asked to the ECJ.
In summary:
- the first is to know whether the advertiser is using or not a trademark when it purchases an AdWord similar to this trademark and when the search results offer a reference to the advertiser's website... and if it makes a difference in that regard whether the reference is displayed in the ordinary list of webpages found, or in an advertising section identified as such
- can a trademark holder be precluded from prohibiting the use of its trademark as a keyword?
- can the exhaustion of rights principle apply?
- does the legal reasoning have to be the same in the case the trademark is deliberately reproduced with minor spelling mistakes?
- if the purchase of a keyword is not legally a trademark use, can the advertiser be deemed to take unfair advantage of the distinctive character or the repute of the trademark?

2 comments:

KeywordExp said...

I made blog about expensive keywords so if you are interested please visit

buy domain names said...

Interesting case but it is nothing to deal with keyword advertising lawful, it is clearly the state of copy content.