Keywords – debate intensifies as Dutch court raises questions with the ECJ

“The controversy over whether keywords sold by search engines can infringe trade marks has intensified, after the Dutch Supreme Court referred five questions on the subject to the European Court of Justice (‘ECJ’),” says Law-Now, an online publication of the law firm CMS Cameron McKenna LLP.

“The Dutch Court’s questions relate to whether the use of a trade mark as a keyword by an advertiser (rather than by the search engine) to prompt a sponsored link could constitute trade mark infringement. The questions complement the questions asked in May 2008 by the French courts, which related to whether the sale of a trade mark by search engines could constitute trade mark infringement.”

The article concludes:
“The French and Dutch courts are not the only courts that have been asking the ECJ questions relating to keywords. In August 2008, for example, the Austrian courts also referred several questions to the ECJ on the issue. The law on trade marks should be harmonised within the European Union and, if it was not already clear from the numerous conflicting decisions on this subject, it is clear from the numerous questions being asked of the ECJ that guidance on this issue is required as soon as possible.

“Unfortunately, regardless of the number of questions being asked of the ECJ, the prospect of receiving any answers from the ECJ is still a distant one. The gap between a referral and an ECJ ruling can be up to 18 months, meaning that brand owners (and search engines) may have to wait a number of months yet before they finally hear the ECJ’s answer to any of the questions asked.”

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