Browsing by Author "Mustonen, Selma"

As online shopping has been depriving market share from the traditional retailers, the importance of keywords used in online searching has also increased. Companies selling their products or services online might wish to maximise their visibility by using as many keywords as possible to draw attention to their merchandise, including also keywords that correspond to a competitor’s trademark. The brand-conscious trademark owners have felt unfairly biased by such marketing strategies and have tried to sue not only the advertisers but the internet intermediaries. This paper firstly explains what keyword advertising is and why it is used before providing a summary of trademark legislation in EU and explaining that the justification for trademark protection is increasing information to the consumers and hence lowering their search costs. A brief summary of the previous case law of the Court of Justice of the European Union (the “CJEU”) in connection with comparative advertising is provided as that serves as the backdrop for the keyword cases. Then a thorough examination of how the courts in the EU have interpreted the liability of the advertisers and the internet intermediaries for keyword advertising. The potential liability of online market places is also discussed. Based on the case law, this thesis argues that the CJEU has lost sight of the consumer benefit as an original justifications for trademark regulation and have interpreted the infringement provisions so widely that trademarks have become very close to proprietary rights potentially posing risks for the fundamental freedoms. This trend started with comparative advertising, which was the predecessor to keyword advertising and has created problems for the courts in subsequent cases. As a result of earlier case law in the area of comparative advertising, the CJEU has had to utilise various assumptions and circular arguments to ensure that the risk of confusion is one of the main elements to determining liability for the purchase of someone else’s trademark as keyword. This paper provides also a critical analysis of the various elements of determining confusion, focussing on the initial interest confusion doctrine and the concept of average internet user. Further, this paper suggests that, as a result of the extended functions of the trademarks introduced by the CJEU, the exact borders of finding confusion have not been clearly set for the national courts. With the help of comparisons to United States case law, this paper makes some suggestions for amending the law to ensure that original aim of better information for consumers is better served. Finally some analysis on how the intermediaries and advertisers might avoid confusion in practice is provided.