Anmerkungen:
In: Tanya Aplin (ed), Research Handbook on Intellectual Property and Digital Technologies (Edward Elgar 2020)
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments 2020 erstellt
Beschreibung:
This chapter, published in an edited collection on IP and digital technologies, has two related goals. The first, which forms the basis of section 2, is to explore how courts in four jurisdictions – the EU, the US, Australia and New Zealand – have addressed the challenges posed by keyword advertising. We demonstrate that courts have done so largely by applying existing trade mark doctrines, and that the technical legal problems encountered by courts have, in fact, been less significant than sometimes imagined. Even in the EU, where the courts have faced the most serious problems of fit, the actual outcomes in the cases are broadly defensible. The second goal, which we explore in section 3, is to shed light on a broader set of normative questions raised by the keyword advertising cases. These relate to the types of harm that ought to be recognised within the trade mark system and, more specifically, on when an actionable form of harm is likely to occur in cases involving advertising generally. It is usually taken for granted that a trade mark owner should be able to prevent at least some uses of its marks in advertising, but exactly why this is the case is not nearly as straightforward as is normally assumed. Using the keyword advertising cases as a springboard, we consider a number of complexities involved in determining when an unauthorised use of a trade mark in the course of advertising ought to be actionable