Google ran an ‘AdWords’ service, whereby economic operators could pay to have a link to their website com up in event that a certain keyword was entered into search bar. Under this service, advertiser could pay to have his advert featured more prominently upon search of keywords by paying a ‘maximum price per click’.
D, Marks and Spencer, paid to have a link to their flower delivery service come up when people entered term ‘Interflora’. C sued for infringement of its trademark. Relevant issues were whether D’s actions constituted infringement under Article 5(2) of Trade Mark Directive. Held:
Detriment to Distinctive Character
· Use of sign identical/similar to an earlier trade mark is detrimental to distinctive character where it turns that mark into a generic term.
· However use of sign identical/similar to trade mark in keyword search does not necessarily make that term generic
Ø i.e. provided that average internet user looking at the advert realises that goods being advertised do not originate from trade mark owner, distinctiveness of trade mark has not been reduced
Unfair Advantage
· See notes
