The Bundesgerichtshof recently passed to the European Court of Justice another question on the interpretation of article 5 (1) a of the Directive on Trade Marks, regarding sponsored links and trade mark use. This is the fourth of the series of questions passed to the ECJ on this topic.

In this case opposing the German companies Eis.de GmbH and BBY Vertriebsgesellschaft mbH, the question lodged on 6 March 2009 (Case C-91/09) is formulated as follows:

Is there use for the purposes of Article 5(1)(a) of Directive 89/104/EEC where a third party provides as a keyword to a search engine operator a sign which is identical with a trade mark, without the consent of the proprietor of that trade mark, so that, on inputting the sign identical with the trade mark as a search term into the search engine, an electronic promotional link to the third party's website advertising identical goods or services appears in an advertising block set apart from the list of search results, that link is marked as a sponsored link and the advertisement itself does not comprise the sign nor contain any reference to the trade mark proprietor or to the products it is offering for sale?