Trademark Licensing in Keyword Advertising

This article examines the use of trademarks as keywords in sponsored links campaigns - in particular the impact of such usage on consumer confusion. It is thus important to highlight that there are a number of reasons why a consumer uses search engines. For example, it may be that a consumer searches for a type of product or service that appeals to them; the consumer may engage in comparison-shopping; or the consumer may already know the specific brand that he or she intends to purchase. Secondly, this article explores the possibility of infringement on other functions of trademarks in the case of the double-identity rule. Thirdly, the article discusses the negative aspects of broadening the concept of taking advantage and isolates this concept from the possibilities of confusion, detriment to the distinctive character, or the reputation of the trademark. Lastly, the article proposes possible remedies to the current situation – in particular the introduction of licensing models for the use of trademarks in keyword advertising and the application of the law on comparative advertising regarding the way the licensee uses those trademarks.