- Infringing advertisements and ‘use’ of a registered trade mark (mk advokaten GbR v MBK Rechtsanwälte GbR)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
IP analysis: The Court of Justice has handed down a judgment dealing with the ramifications of an infringing advertisement being displayed by a referencing website without the advertiser’s consent or knowledge. In the case, a German law firm listed an advertisement with an online entity but subsequently removed the advert following legal proceedings for trade mark infringement. Unbeknown to the German firm, the advert was copied and reproduced by a referencing website operator. The German Appeal Court referred a question to the Court of Justice on what constitutes ‘use’ for the purposes of trade mark infringement. Specifically, is an entity ‘using’ a trade mark if its infringing advert is being displayed on a third party forum without their order or control? The Court of Justice held that such circumstances did not constitute ‘use’ by the entity, but could constitute ‘use’ by the website operator where it was acting on its own initiative in displaying the advertisement. Written by Joshua Marshall, senior associate, at Fieldfisher LLP.
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