Open UKLSR Volume 1(2) - Uklsa

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Reconsidering the Judicial Approach Adopted in Relocation Disputes Nevertheless, it is believed that the approach encompassed in the Washington Declaration offers a guiding light for the resolution of these disputes: a light that focuses on the best interests of the child whilst identifying the reality of the rightsbased era. It provides the best opportunity to produce a result in the child’s best interests. Perhaps in these most tragic and complex disputes, this is all that can be hoped for. 12
GOOGLE’S DECISION TO PERMIT COMPETITORS AND RIVALS TO PURCHASE KEYWORDS OF TRADEMARKS ACCEPTABLE AS LONG AS IT DOES NOT CAUSE CONSUMER BRAND CONFUSION Ren-En Lim, Liverpool University I – Introduction Google is the world’s most widely-used search engine with an audience share of over 80% of global internet users. It is therefore not surprising that advertisers have recognised Google’s tremendous potential to reach out to new audiences both nationally and internationally, and Google has cleverly exploited this quality by launching its “AdWords” service. Proponents of “AdWords” laud it as a bastion for free competition and freedom of speech; Opponents (amongst them trademark owners), however, deride Google AdWords for infringing trademarks (and thereby undermining the incentive for producers to innovate), and for not recognising that the protection of a trademark’s ‘indicating origin, advertising, communication and innovation’ functions may actually be helpful in assisting producers to expand into new markets and in aiding consumers confronted with a wider range of choices. It is this inherent tension which the courts (both UK and ECJ) face when deciding cases involving AdWords. In this paper, it will be argued that the discussing statement is accurate as a likelihood of confusion is necessary before infringement actions can be brought under s.10(2) of the Trademarks Act 1994 (“TMA”). Moreover, although courts have recognised in principle that confusion is presumed under s.10(1) and that infringement of the section may occur if there is misuse of the trademark that either its indicating origin, advertising or investment functions are undermined, this is however qualified by the deliberate setting of a high evidentiary threshold for infringement of such functions to be found. With regards to s.10(3), a similar point will be made: confusion is not necessary for an action to be brought under the section, but there is also a high evidentiary threshold to be fulfilled before trademark proprietors succeed in an infringement action under it. This therefore gives rise to a plausible assertion that as long as there is no likelihood of confusion, there is little for rival advertisers who purchase keywords of their competitor’s trademark to be worried about from a legal copyright infringement perspective. I(a) – What is Google AdWords? At its simplest, Google AdWords manipulates search results to artificially prioritise an advertiser’s website over other possible results. 1 An advertiser purchases the keywords with which he wants his website and AdWords advertisements to be associated, which will link his advertisement to the purchased keywords. 2 When someone uses a Google program that runs a search, his advertisement will appear alongside other search results. The advertiser is able to decide on a maximum billing rate, which is one of two factors Google use to determine where on the search result pages the advertisement will appear. 3 The value of AdWords thus lies in the fact that 1 Ashley Tan, ‘Google AdWords: Trademark Infringer or Trade Liberalizer?’ (2010) 16 Mich. Telecomm Tech L Rev, 473. 2 ibid. 3 The other factor being the “Quality Score” of the advertisement, a multi-criteria scoring system that attempts to objectively evaluate how relevant – or how effective – an advertisement is to the search results with which it has been associated in the past.
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Page 3 and 4: The UK Law Students’ Association
Page 5 and 6: Acknowledgements The UK Law Student
Page 7 and 8: IN WHOSE BEST INTERESTS? RECONSIDER
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