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TM LAW and ADWORDS and METATAGS AIPPI Congress October 22 Workshop V Prof. Charles Gielen, NautaDutilh, Amsterdam, NL chair Mincheol Kim, Knobbe Martens, Irvine, US Sara Ashby, Redd, London, UK Emmanuel Larere, Gide, Paris, France Programma 1. Technical background (Mincheol) 2. TM owner v. advertiser – European viewpoint on confusion (Emmanuel) and dilution (Sara) – US and Korean viewpoint (Mincheol) 3. TM owner v. host – European viewpoint (Sara) – Application in France (Emmanuel) – US viewpoint (Mincheol) 4. Q and A Technical Background Technical Background © 2012 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 3 Metatags • Metatags (or meta tags) • HTML or XHTML code providing information about a web page <HEAD> <TITLE>This is the Web Page Title</TITLE> <META name="description" content="This is where you place your web page's description."> <META name="keywords" content=“Place, your, keywords, here, separated, by, commas"> <META name="language" content=“Language"> </HEAD> • Internet searching and keyword metatags • In the past, almost all Internet search engines used keyword metatags for searching • Keyword metatags are chosen by website owners and could be abused • What if “NIKE” is inserted as keyword meta tag • For a website selling NIKE and other shoes • For a website of a show maker unrelated to NIKE • In 2009 Google and Yahoo! announced • They would no longer use “keyword metatags” to produce search results • Google uses information from “description metatags” for its internet searches 4 Keywords - • Google sells keywords for Internet advertisements • One can purchase a term related to its business • When an Internet user searches for the purchased term, a web link to the business appears on Google’s search results • More than one person can purchase the same term 5 Search term Ads of Sponsored Links Description meta tag Natural search results 6 Keywords - 7 TM Owner v. Advertiser: the European viewpoint ALGIERS 1. Competitor’s use of a “classical” BEIJING BRUSSELS BUCHAREST trademark - when is it infringement? BUDAPEST CASABLANCA HANOI HO CHI MINH CITY HONG KONG ISTANBUL KIEV LONDON Focus on ECJ Cases Google France, Bergspechte and MOSCOW NEW YORK Portakabin [2010] PARIS ST. PETERSBURG SHANGHAI TUNIS WARSAW Situations tackled in the ECJ cases  Situation 1 - “Pure” utilisation of trademarks as keywords  A owns trademark X and B (competitor of A) registers X or variants of X as “Adword”  The ad displayed in the “sponsored links” section contains no reference to trademark X  Situation 2 - Same as 1, but :  B’s website offers second-hand X products  The ad displayed in the sponsored links section refers to “used X products”  Situation 3: - Same as 1, but :  B’s website offers imitation versions of X products  B registers X as “Adword”, in combination with terms like “imitation” or “copy” PAGE9 The legal background  A trademark owner is entitled to prohibit a party from using, without his consent, a sign identical with or similar to that trademark, when :  That use is in the course of trade;  That use is in relation to goods or services identical with those for which that trademark is registered;  That use is liable to affect the functions of the trademark.  The functions of a trademark include:  The function of indicating origin (which is the essential function)  The function of guaranteeing the quality of the goods  The functions of communication, investment and advertising  If the sign is identical with the trademark The owner may prohibit uses that affect any of the functions   If the sign is similar to the trademark The owner may only prohibit uses that affect the essential function  PAGE10

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For a recent example: French Supreme Court, 25 September 2012, Auto IES. ▫ Examples of cases TGI Paris, 29-02-2012. Weston (shoes) . Page 27

TM LAW and ADWORDS and METATAGS - AIPPI PDF

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For a recent example: French Supreme Court, 25 September 2012, Auto IES. ▫ Examples of cases TGI Paris, 29-02-2012. Weston (shoes) . Page 27

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