'It's the Ad text, stupid': cryptic answers won't establish legal certainty for online advertisers

Abstract

Within hours of publication of the eagerly awaited ECJ decision on keyword advertising, commentators began critically analysing it, speculating on how national courts will eventually rule on similar cases and raising a number of questions. The ECJ found that Google, as a provider of a referencing service, did not use the sign in the course of trade and thus had not infringed trade mark law, but also found that advertisers might be liable for such infringement if their advertisements adversely affect the functions of the trade mark. It found that keyword advertising “usually” does not affect the advertising function of the trade mark, the question of how an ad has to be drafted so as not to affect the function of indicating origin remains open. The Court provided limited guidance to this question by stating that it depends particularly on the manner in which the ad is presented and that the function of indicating origin is adversely affected if the ad is so vague that an average internet user might assume an economic connection between the trade mark proprietor and the advertiser. As text in AdWords is restricted to only 95 characters, it remains to be seen if advertisers will successfully rule out any possible connection between themselves and trade mark proprietors.