CJEU reiterated its stance in Google
France. When further considered by the
High Court of Justice, Justice Arnold
found that Marks & Spencer had infringed
Interflora's trademark. The court reasoned
that the sponsored advertisements did not
allow consumers to work out whether the
services offered in those advertisements
were from Interflora, a member of
Interflora's network, or from an unrelated
third party, and hence the origin function
of Interflora's mark was adversely affected
by the advertisements. This finding was
influenced by how the Interflora trademark
was used in business. Interflora used
a network of independent florists. To a
consumer who searched for Interflora,
Marks & Spencer could have seemed part
of the Interflora network.
keyword advertising trademark
infringement cases, U.S. courts have been
divided over a number of issues.
To be successful in a trademark
infringement case, under the Lanham
Act, 15 U.S.C. § 114, a party must
prove: (1) the trademark is valid, (2) the
accused infringer used the trademark in
commerce in connection with the sale or
advertising of goods or services (3) without
permission and (4) the defendant's use of
the mark is likely to cause confusion.
trademark in commerce and in connection
services. There was initially a divide
among U.S. circuits as to whether using
a competitor's trademark as a keyword
constituted "use in commerce."
area where courts have been divided is the
fourth element that is, whether the use is
likely to cause confusion.
Despite lack of consensus in the area,
the trend in the U.S. is that defendants
win keyword advertising cases.
in the U.S. no trademark owner has won
a competitive keyword advertising case
since 2011.
applied the Sleekcraft factors in order to
determine whether a trademark use gives
rise to a likelihood of confusion.
Circuit considered whether the defendant's
use of the plaintiff's trademark was
likely to cause confusion.
Concept's "ActiveBatch" trademark as a
keyword in Google AdWords and other
keyword search marketing programs. The
court ruled that this did not constitute
trademark infringement. It found that the
likelihood of confusion was insufficient
to support injunctive relief. In reaching
its conclusion, the court considered
the Sleekcraft factors a flexible manner,
emphasising the importance of doing so,
particularly in the context of internet
commerce.
different approaches to competitive
keyword advertising, but with similar
results. In the age of the internet and
global advertising, an international legal
perspective is their key word.
para 85.
para 99.
5 KP Permanent Make-Up, Inc. v. Lasting Impression I,
& Recreation v. Bazaar Del Mundo Inc., 448 F.3d 1118,
1124 (9th Cir. 2006).
(2010), available at http://www.mttlr.org/volsixteen/tan.
Feb. 11, 2015, blog.ericgoldman.org/archives/2015/02/
more-defendants-win-keyword-advertising-lawsuits.htm.
digitalcommons.law.scu.edu/facpubs/880.
the marks Sleekcraft and Slickcraft. The Court identified
eight relevant factors for determining whether consumers
would likely be confused by related goods. AMF, Inc. v.
Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979).
commerce" of the trademark.
the marks Sleekcraft and Slickcraft. The Court identified
eight relevant factors for determining whether consumers
would likely be confused by related goods. AMF, Inc. v.
Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979).