Using the Function Theory to Explain Due Causee in the Interflora Case

Abstract

The trademark infringement concerning the use of Google AdWords has become a controversial matter in the UK and EU courts. Recently, the European Court of Justice (CJEU) has employed the function theory to ascertain the trademark infringement under Directive 89/104/EEC. Especially, the Interflora case is the first case that the CJEU interpreted ‘due cause’ with regard to trademark functions. This research would like to contribute to the current literatures particularly the assessment in relevance to the validity of the function theory. In the end of this research, it will be found that the use of others’ registered trademarks as keywords according to Google AdWords service is not inherently objectionable. Additionally, the fashionable function theory evidently reveals a number of shortcomings in addressing the adverse effect on trademark functions. Consequently, the ‘due cause’ interpretation was little enlightened. The research further reinforces the opinion that the essential function of origin ought to prevail over the secondary functions.