In an interview for HouseMARQUES, Konstantin said he first started to look at this topic back in 2008. "I was interested in trade mark law and I was a bit of a nerd, so it was the perfect combination!"
"It was one of the hottest topics in trade mark law," he adds, noting that keyword advertising was addressed by the Austrian Supreme Court in the Wein & Co v Weinwelt case in 2007. "At the beginning, the courts were not familiar with this new method of advertising and there was a lot of controversy," he says.
"Studying this topic, I realised that trade mark law is still fit for new technologies, but one has to be circumspect when applying the law as it can be a perpetual right and there is no fair use defence as such," he adds. In this context, he notes the CJEU's expansion of the concept of the functions of a trade mark beyond that of protecting origin in the L'Or?al v Bellure case.
Looking back on the various cases since 2008, Konstantin says of the courts: "They tend to get the right results, but the approach needs to be rectified. If you read the suggestions of the Max Planck Institute regarding the EU trade mark reform, they said that the function should be confined to identifying origin only."
The Lewis Gaze Memorial Scholarship is presented annually to a student from the country hosting the Annual Conference. The winner is decided by the host university, the MARQUES Education Team and the MARQUES Council.
The first prize winner is invited to attend the following year's conference as a guest of MARQUES.
Konstantin has now completed his studies and is training at a law firm, handling IP work as well as corporate and labour law. "Trade mark law is still one of my favourite topics and I hope to specialise more in this are in the future," he says.
The abstract of Konstantin's paper is printed below. The full paper can be read on the MARQUES website.
The Trade Marks Directive and Community Trade Marks Regulation have been uniformly applied for two decades and have been harmonising European trade marks law to a great extent. Recent developments, however, highlighted that the application of the infringement provisions can still cause problems. Especially the use of third-party trade marks as keywords in keyword advertising systems such as Google AdWords to trigger advertisements on search engines' results pages caused confusion among legal practitioners in the European Union, as to what extent trade marks law would be applicable. Due to the controversial legal issues involved, an inconsistent body of case law regarding the practice of using third-party trade marks as keywords developed in several Member States of the European Union. Starting in 2008, the Court of Justice of the European Union was called upon to put an end to the legal uncertainty in course of a series of references for preliminary rulings. The subsequent judgements of the Court of Justice sparked a lively discussion among legal scholars. Furthermore, the policy interest in the online marketing tool keyword advertising on an international and European level, stands as a testimony to the far-reaching relevance of the critical legal issues involved. This thesis analyses the issues arising out of the incongruent national and European case law regarding keyword advertising and contemplates solutions for the problems identified. Analysis shows that the reasons for the complications do not arise out of the fact that aging law is applied to subject-matter in constant flux. In reality, the problems of the concrete application of European trade marks law result from the universal tendency to expand intellectual property rights beyond their traditional domain. This development is reflected in the Court of Justice's inconsistent body of case law. The research demonstrates that this non-consolidated expansion doctrine builds upon a shaky factual basis as regards trade marks law. Furthermore, it shows that, in principle, a sound application of European trade marks law to cases like the marketing tool keyword advertising would be possible de lege lata. However, at this point, an application warranting legal certainty cannot realistically be expected because of the monopoly of the Court of Justice of the European Union in interpreting European trade marks law. For this reason, the thesis also contemplates possible solutions de lege ferenda.
Issue 058
Recent developments in the Madrid System include changes following the accession of Algeria, an upcoming seminar and a meeting of the Madrid Working Group
