Adapting EU Trademark Law to New Technologies - Back to Basics?

Abstract

In recent years, the Court of Justice of the European Union (CJEU) has continuously expanded the scope and reach of trademark protection in the EU. With the challenges arising in the digital environment, however, this expansionist approach becomes more and more questionable. The current problems arising from keyword advertising shed light on areas of overbroad, excessive trademark protection created by the Court. Moreover, inconsistencies in the Court's system of infringement criteria clearly come to the fore. Against this background, the present analysis explores ways out of the dilemma.

After a short introduction of basic notions of trademark law (section 1), the problematic expansion of trademark protection in recent years (sections 2 and 3), and current problems arising in the digital environment (section 4), will be analyzed in more detail. Addressing potential solutions, it will be argued that in spite of current difficulties, it would be naive to assume that the Court is prepared to restrict the scope of EU trademark law to traditional protection against confusion with only minor extensions concerning dilution (section 5). Instead, the need for an appropriate, more flexible limitation infrastructure will be emphasized (section 6 and concluding section 7).

Keywords: European trademark law, keyword advertising, comparative advertising, freedom of expression, freedom of competition, limitations, fair use, parody, function theory, absolute protection, dilution, blurring, tarnishment, free-riding, unfair competition law, trademark law harmonization