423 research outputs found
Google AdWords - ur ett marknadsrättsligt och varumärkesrättsligt perspektiv
Google AdWords är en tjänst som erbjuder företag möjligheten att registrera sökord i Google. Tjänsten innebär att vid sökning i Google visas företagets annons i träffarna, även om den inte har ett naturligt samband med sökordet. EU-domstolen har tagit upp Google AdWords för förhandsavgörande och 2012 avgav Marknadsdomstolen en dom om förfarandet. Syftet med denna framställning är att utreda varumärkesrättens och marknadsrättens relation till varandra vid bedömningen av Google AdWords. Studien utreder varumärkesrätt och marknadsrätt. De olika typer av varumärkesintrång som redogörs för i denna framställning är intrång vid dubbel identitet, intrång vid förväxlingsrisk och intrång på kända märken. Resultatet visar att marknadsrätten och varumärkesrätten bygger på liknande begrepp och domstolarna gör liknande bedömningar vad gäller exempelvis genomsnittskonsumenten och skyddet för kända märken. Trots detta är gränsdragningen mellan de två rättsområdena skarp i svensk rätt och vid tvist måste två parallella tvister företas i olika domstolar för att nå framgång med talan enligt både marknadsrättsliga och varumärkesrättsliga bestämmelser. Detta är en skillnad från EU-rätten där rättsområdena i stället samverkar och domstolarna gör en samlad bedömning av marknadsrätt och varumärkesrätt. Google AdWords-avgörandena visar att domstolarna i viss mån har utvecklat den typiska modellen för varumärkesintrång och tagit hjälp av typiskt marknadsrättsliga tillvägagångssätt i sina bedömningar. Det svenska avgörandet från Marknadsdomstolen visar att det är möjligt att inställningen har ändrats mot en mindre strikt gränsdragning mellan rättsområdena.Google AdWords is a service that offers companies the possibility to register a keyword in Google. The service enables the company’s advertisement to end up in Google’s search results, even though the company does not have a natural connection with the keyword. The Court of Justice of the European Union has given a couple of preliminary rulings on Google AdWords and in 2012 the Swedish Court of Marketing Law gave a ruling on the procedure. The purpose of this paper is to investigate the relation between trademark law and marketing law in the assessment of Google AdWords. The study investigates trademark law and marketing law. The different types of trade mark infringement that are described in this paper, are double identity infringement, infringement at the likelihood of confusion and infringement on well-known marks. The result shows that marketing law and trademark law uses the same terms and the Courts have made similar assessments regarding for example the average consumer and protection for well-known marks. Despite this, there is a firm boundary in Swedish law between the two legal areas and in order to be successful in both trademark law and marketing law, a complaint must be made in two parallel trials. This is different from EU law, where the Courts make an overall assessment of marketing law and trademark law and the legal areas co-exist. The Google AdWords cases show that the courts have evolved from the typical model for trademark infringement and have instead took a more typical marketing law approach in their assessments. The Swedish ruling from the Swedish Court of Marketing Law shows that it is possible that the attitude has changed towards a less strict separation between the legal areas
Google Adwords: Trademark Infringer or Trade Liberalizer
Google is the world\u27s most preferred search engine, with an audience share of eighty percent of Internet users worldwide. With so many people browsing its search results, Google is a natural advertising vehicle, and it has exploited this quality to become one of the most profitable Internet companies in U.S. history. However, success has not come without controversy, and one of the most significant concerns Google AdWords, which displays keyword-triggered ads and sponsored links alongside non-sponsored search results. AdWords has come under attack in the United States and in the European Union ( EU ) for its role in trademark infringement on the Internet, forcing courts to confront the clash of pre-Internet trademark infringement doctrines with new technology. Courts wish to be sensitive to the claims of trademark holders, but are reluctant to harm the essential functions of Google, which has become integral to Internet structure and capability. In addition, they have struggled with trademark protection\u27s traditional foundation in a world of physical boundaries when the Internet has rendered such barriers largely meaningless.[...] Part I of this Note outlines how Google AdWords uses keywords to generate online advertisements, explains where trademarked terms can enter this process, and how Google\u27s legal policy approaches the use of such terms. Part II summarizes the current state of U.S. trademark law and policy with respect to keyword-triggered online ad programs, and Part III summarizes the same with respect to the EU. Part IV argues that the United States and the EU should coordinate international efforts to legitimize through legislation certain uses of trademarked terms by search engines in order to avoid inefficient balkanization of the Internet, and to protect a search engine\u27s capability to encourage trade liberalization
Google Adwords: Trademark Infringer or Trade Liberalizer
Google is the world\u27s most preferred search engine, with an audience share of eighty percent of Internet users worldwide. With so many people browsing its search results, Google is a natural advertising vehicle, and it has exploited this quality to become one of the most profitable Internet companies in U.S. history. However, success has not come without controversy, and one of the most significant concerns Google AdWords, which displays keyword-triggered ads and sponsored links alongside non-sponsored search results. AdWords has come under attack in the United States and in the European Union ( EU ) for its role in trademark infringement on the Internet, forcing courts to confront the clash of pre-Internet trademark infringement doctrines with new technology. Courts wish to be sensitive to the claims of trademark holders, but are reluctant to harm the essential functions of Google, which has become integral to Internet structure and capability. In addition, they have struggled with trademark protection\u27s traditional foundation in a world of physical boundaries when the Internet has rendered such barriers largely meaningless.[...] Part I of this Note outlines how Google AdWords uses keywords to generate online advertisements, explains where trademarked terms can enter this process, and how Google\u27s legal policy approaches the use of such terms. Part II summarizes the current state of U.S. trademark law and policy with respect to keyword-triggered online ad programs, and Part III summarizes the same with respect to the EU. Part IV argues that the United States and the EU should coordinate international efforts to legitimize through legislation certain uses of trademarked terms by search engines in order to avoid inefficient balkanization of the Internet, and to protect a search engine\u27s capability to encourage trade liberalization
Google’s liability under EU law for trademark infringements committed through the AdWords system
Trademarks represent one of the fundamental elements of maintaining an active competition on the market. Therefore, it is natural that trademark protection should be under constant reconstruction and amendment in accordance with changes and developments in the business world. The most extensive development over the past years occurred through the rise of the Internet, which resulted in a changed focus point for trademark protection as well. While general exclusive rights retain their importance, new challenges have surfaced with the rise of the Internet. These problems have called for a re-interpretation of trademark laws, new legislation and an evaluation of conflicting rights and interests in light of business developments. Even though current legislation has been improved and is increasingly fitted to this new environment, the Internet still challenges trademark protection. One of the more troubling conflicts which have arisen is manifested in the Google search engine and the operation of advertisement software connected to the search engine. Through its function as a global search engine, Google has managed to attract a vast number of advertisers by selling search terms, or keywords, through a software called AdWords. The AdWords program has, however, been greatly criticised by trademark owners claiming it is an infringement tool. The alleged infringements that have been committed through the Google AdWords software have raised concerns by trademark proprietors that with the Internet, they are vulnerable to attacks on their marks and that without proper reaction by the courts, their rights will be severely diminished. On the other hand, the AdWords cases have been marked as an attempt of trademark holders to expand their rights even further and have raised concern that extended trademark protection would be established at the cost of restrictions on freedom of expression and commerce. As Google AdWords has caused considerable debate, it does not come as a surprise that several cases regarding its legality have been presented in national courts, with many of them reaching the European Court of Justice (ECJ) for a preliminary ruling. However, most of the cases have been restricted to the question of whether advertisers using the AdWords software are committing trademark infringements and thus have not considered the liability of Google as an Internet service provider (ISP). Until now, only three cases specifically discussing ISP liability in connection with the AdWords system have been referred to the ECJ. In the following text, these three cases regarding Google’s liability will be discussed, addressing the liability question from both a primary and a secondary infringement point of view. Furthermore, European Union (EU) legislation and directives will be examined, and light will be shed on the conflicts of interest between parties. European national courts have delivered diverse opinions on the matter, and it is clear that the ECJ will have decisive effect on the future of electronic use of trademarks, as the ECJ’s judgement is binding on national courts. Furthermore, the ECJ will have decisive effect on the future of Google as well as the future of other comparable ISPs, as its judgements will serve as precedent for similar trademark uses. The article will therefore emphasise Google’s position under EU laws and the guidelines provided by the ECJ. The aim will be to answer the question whether the use by Google of keywords corresponding to trademarks in its AdWords advertising system constitutes an infringement of those marks. Relevant sources regarding the legality of the AdWords system under EU law are scarce, as the ECJ judgement is quite recent. Therefore, the judgement itself as well as legislation are at the centre of the following discussion
Trademarks in New Markets: Simple Infringement or Cause for Evaluation?
Are search engines liable for trademark infringement for offering trademarks as ‘keywords’ to others than the trademark owner? Is the act of displaying or arranging the display of an advertisement for identical or similar goods to that of a registered trademark that has been selected and stored by an internet service provider infringing the trademark owner’s exclusive right? Is the act of providing an information society service in e-commerce unlawfully encumbered by a flood of trademark complaints? The answer depends on perspective. This article discusses alternative ways of bridging grey areas between harmonizing legislation. It stops to ask whether, instead of how rights apply in new settings. It discusses the process of decision-making; i.e. how different approaches to interpretation affect different right positions. On the one hand, it considers trademarks as property that confers on the owner a right to exclude others, when harm is established. It asks what property protection entails for trademark owners, in theory and practice. On the other hand, it considers other interests explicit or implicit in legislation and weighs them against the legitimate interests of trademark owners, in new settings. It compares these approaches by using concrete examples from EU cases and concludes that there are alternative ways of bridging the gap between overlapping and conflicting directives
Trademarks, Triggers, and Online Search
Internet search engines display advertisements along with search results, providing them with a major source of revenue. The display of ads is triggered by the use of keywords, which are found in the searches performed by search engine users. The fact that advertisers can buy a keyword that contains a trademark they do not own has caused controversy worldwide. To explore the actual effects of trademark and keyword advertising policies, we exploit a natural experiment in Europe. Following a decision by the Court of Justice of the European Union, Google relaxed its AdWords policy in continental Europe in September 2010. After the policy change, Google allowed advertisers to select a third party's trademark as a keyword to trigger the display of ads, with only a limited complaint procedure for trademark owners. We use click-stream data from European Internet users to explore the effect this policy change had on browsing behavior. Based on a data set of 5.38 million website visits before and after the policy change, we find little average change. However, we present evidence that this lack of average effect stems from an aggregation of two opposing effects. While navigational searches are less likely to lead to the trademark owner's website, non-navigational searches are more likely to lead to the trademark owner's website after the policy change. The effect of changing keyword advertising policies varies with the purpose of the consumers using the trademark, and it is more pronounced for lesser-known trademarks. The article points to tradeoffs trademark policy is facing beyond consumer confusion. More generally, the article proposes a novel way of analyzing the effect of different allocations of property rights in intellectual property law
The commercial functions of a trade mark, unconventional trade marks and modern technology
The paper analyses the current legislation within the UK and Europe with respect to trade mark law. A number of legal journals and case reports provide the bulk of research material, with use of direct judicial quotes and key opinions of journal authors providing the framework for research into the state of current trade mark law. The historical functions of trade marks dating back nearly a century are still relevant today, with concepts recognised and enshrined by both domestic UK and European Union courts. Trade marks work as a badge of origin and, by extension, allow similar products to be differentiated. They act as a guarantee of quality and an ambassador for the generation and preservation of goodwill that has been generated within a given trade mark. Gaining a trade mark confers a near monopoly on its use and the legislation provides mechanisms to protect and recognise this. A trade mark allows businesses to build identity, quality and reputation into the core essence and branding of their products. A diverse quantity of ideas and concepts are capable of representation graphically, in both conventional and abstract forms, allowing them to be trade marked. The resulting monopoly granted by the trade mark is of exceptional importance to businesses of all sizes, allowing them to benefit from the breadth of commercial functions that a trade mark can fulfil. Despite the law regularly playing catch-up to new technological advances, the courts are applying flexible and practical solutions to accommodate the developing needs of modern informational technology
The Preliminary Ruling Decision in the Case of Google vs. Louis Vuitton Concerning the AdWord Service and its Impact on the Community Law
The internet user after entering the keywords obtains two kinds of search results – natural and sponsored ones. The following paper deals with the issue of using keywords which correspond to trademarks registered by a third party for advertising purposes through internet search portals such as Google, Yahoo, Bing, Seznam, Centrum etc. (in principle web search portals). The objective of this article is to analyze decided cases dealing with the AdWords service issued by the Court of Justice of the European Union and compare them also with the attitude in similar disputes in the U.S. Within this knowledge it is necessary to determine the impact of these decisions on further national courts decisions of European Union member states. Moreover there is also legal impact on copyright law and responsibility of internet search engines deduced. The method of the analysis of courts decisions is used and the method of legal comparison is applied to different attitudes in similar cases. Where a third party uses a sign which is identical with the trademark in relation to goods or services identical with those for which the mark is registered, the trademark proprietor is allowed to prohibit such use if it is liable to affect one of the functions of the mark (particularly the function of indicating origin). Regarding to the liability of the Internet search engine itself, decisions of the courts in matters of Internet search engines in the European Union vary from state to state. Whereas the German courts tend to currently access the responsibility for the outcome of the search engines more freely, the French courts are often more stringent. Differently, we can say much more liberal, is the access of the U.S. courts to this issue. Preliminary ruling decision in case of Louis Vuitton Malletier SA vs. Google, Inc. and community practice in further cases follow similar (liberal) decisions of the courts of the U.S
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