On 13 October 2009 the Danish Supreme Court rendered a decision concerning keyword advertising. After the question had been admitted to the Supreme Court by the Danish Board of Appeal Permission, the court refused to issue an injunction on the use of third party registered trade marks as adwords (in this case SKODA). Hanne Weywardt, partner in the Copenhagen office of MAQS Law Firm, reports that the appellant, HE-House A/S and HE-Biler, succeeded in having the High Court’s decision to issue an injunction overruled by the Supreme Court, which doubted whether the registration of a keyword was a “commercial use” of the trade mark belonging to Skandinavisk Motor Co. A/S (SMC).

The judges considered the meaning of Article 6 of the EU Trade Mark Directive unclear with regard to the use of third party trade marks as adwords – an issue which is currently pending before the Court of Justice of the European Union. Consequently the Court found that it was not shown to be likely that HE-House infringed SMC’s trade marks. Thus the conditions of the Danish Code of Civil Procedure section 642, no.1, were not met and the injunction previously affirmed by the High Court could not be upheld.