Abstract
The article reviews the case law in the USA, France, Germany, and the UK; on the use of third party trade marks to trigger the display of sponsored search advertisements on search engines.; The article; analyses the application to this practice of the ECJ's requirement in Arsenal v Reed that offending uses of trade marks must affect their function, in particular their essential function as a badge of origin, and considers the effect of the recent ECJ decision in O2 v H3G. The legality of the practice is a grey area in most jurisdictions, with few coming to any firm and consistent conclusions.; In Europe, member states have differing views, despite the presence of harmonized trade mark laws.; The best authority available; in the UK is arguably weak and given the conclusion of the ECJ in O2 v H3G may not now be correct.; In any case, the French Cour de Cassation has referred pertinent questions on the practice to the ECJ, and so an answer should be coming, if not for a while. Keyword advertising is big business for search engines and their advertisers, with the majority of online advertising budgets spent in this way.; But brand owners are not happy with third parties using their trade marks in the hope of increasing custom, while potentially diverting it from the trade mark owner.
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