Metatags and keywords as comparative advertising

Abstract

of the European Union (CJEU) classified the use of domain names and metatags as being advertising in the sense of the Directive on Misleading and Comparative Advertising while voicing considerations that permit the conclusion that such use constitutes comparative advertising. This article discusses the significance of this judgment for classifying keyword advertising as comparative advertising, and analyzes this viewpoint in light of the classification of keyword advertising by the CJEU under trade mark law. The trade mark function doctrine with additional trade mark functions, such as the advertising function and the investment function, introduced by the CJEU into the double identity protection, conflicts with the understanding of keyword advertising as comparative advertising under unfair competition law. This conflict must be resolved.