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After the long awaited landmark Louis Vuitton v. Google decision, the European Court of Justice (the “ECJ“) has issued another interesting decision on the use keywords in search advertising systems (e.g. AdWords) that however reviews the issue on the advertisers’ side.
The ECJ held that a trademark holder can prohibit from advertising an advertiser that – without the consent of the trademark holder – selected a keyword for an Internet referencing service identical with/similar to trademark registered by the former in relation to goods/services identical to those in respect of which his mark is registered, “where that advertising does not enable average 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 from an undertaking economically linked to it or, on the contrary, originate from a third party“. Also, the ECJ added that in such circumstances advertisers cannot rely on the exceptions to the applicability of the abovementioned prohibition prescribed by Article 6(1) of the Trademark Directive 89/104/EEC but it is up to national courts to determine the applicability of this exception on the basis of the particular circumstances of the case.
This decision confirms the position initially taken by the ECJ in the Louis Vuitton v. Google case, but it will be interesting to see how these decisions will be followed by national courts and which level of cooperation by the provider of the Internet referencing service in the selection of the keywords chosen by the advertiser will trigger his liability in addition to the one of the advertiser.
Do you want to discuss the implications of the abovementioned decision on your specific case or business? Feel free to contact me, Giulio Coraggio.
This decision confirms the position initially taken by the ECJ in the Louis Vuitton v. Google case, but it will be interesting to see how these decisions will be followed by national courts and which level of cooperation by the provider of the Internet referencing service in the selection of the keywords chosen by the advertiser will trigger his liability in addition to the one of the advertiser.
Do you want to discuss the implications of the abovementioned decision on your specific case or business? Feel free to contact me, Giulio Coraggio.
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