Trade mark owners consider their interests damaged by this practice. They have filed numerous law suits worldwide against advertisers as well as search engines. The courts have been confronted with the difficulty of applying traditional laws to this new use of trade marks on the internet, with the result that diverging decisions have emerged. Even after a series of judgments from the Court of Justice of the European Union, the legal situation remains uncertain.
It is argued throughout this dissertation that the use of third party trade mark keywords has the potential to benefit society at large in that it enhances consumer information, competition and e-commerce, provided that such use does not cause confusion among consumers. It is therefore maintained that the infringement provisions of the Trade Mark Directive should allow a balance of the trade mark owner’s interests with those of third parties and the public in general. In this regard, the “absolute” protection granted under Art 5(1)(a) TMD is particularly problematic. Several solutions for enabling a balance of interests, while still ensuring sufficient legal certainty and a logical system of infringement provisions are suggested in this dissertation.
The central doctrines in trade mark law researched in this book concern: the “trade mark use” requirement, the likelihood of confusion, the protected functions of a mark, the protection of reputable marks and the limitations to trade mark rights. Furthermore, the use of trade mark keywords is examined from the perspective of unfair competition law, particularly at the intersection with trade mark law. In addition, the liability of the search engine is discussed. This dissertation presents several proposals both for an adequate interpretation of the existing provisions and for a potential revision thereof.
