Is keyword advertising lawful? A new reference for a preliminary ruling to the Europe

[Francois]

In a dispute between Dutch companies Portakabin and Primakabin over the use of a trademark through Google AdWords (C-558/08), five questions are asked to the ECJ.
In summary:
- the first is to know whether the advertiser is using or not a trademark when it purchases an AdWord similar to this trademark and when the search results offer a reference to the advertiser's website... and if it makes a difference in that regard whether the reference is displayed in the ordinary list of webpages found, or in an advertising section identified as such
- can a trademark holder be precluded from prohibiting the use of its trademark as a keyword?
- can the exhaustion of rights principle apply?
- does the legal reasoning have to be the same in the case the trademark is deliberately reproduced with minor spelling mistakes?
- if the purchase of a keyword is not legally a trademark use, can the advertiser be deemed to take unfair advantage of the distinctive character or the repute of the trademark?- Prof. Cedric Manara [Content under License]


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