Use of a keyword – is it trade mark infringement?
A number of trade mark cases before the courts in various European countries are debating whether the use of a third party’s trade mark as a keyword amounts to trade mark infringement, either by the party using the keyword or the party selling use of the keyword. A majority of these cases, including L’Oreal v eBay and Interflora v Marks & Spencer, have referred questions to the European Court of Justice (ECJ) for guidance as to how the EU law should be applied before issuing their decisions.
In the case of Google France v Louis Vuitton, the Advocate General has handed down his
initial opinion, which is that the use by a third party of another party’s trade mark as a
keyword will not amount to trade mark infringement by the party using the keyword or
the party which sold the right to use the keyword. The Advocate General’s opinion is not
binding on the ECJ but can give an indication as to the thought process that could be
followed.
No doubt when the ECJ issues its final decision in this case, a barrage of decisions will
issue from pending cases that have been awaiting the ECJ guidance. The ECJ’s ruling is
expected in the first half of this year.
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