Order of the Court (Fifth Chamber) of 26 March 2010 – Eis.de v BBY Vertriebsgesellschaft
(Case C-91/09)
First subparagraph of Article 104(3) of the Rules of Procedure – Trade marks – Internet – Keyword advertising – Display, on the basis of a keyword identical to a trade mark, of the advertisement of a competitor of the proprietor of that trade mark – Directive 89/104/EEC – Article 5(1)(a)
Approximation of laws – Trade marks – Directive 89/104 – Right of the trade mark proprietor to prevent third parties from using an identical sign for identical goods – Advertising in connection with an internet referencing service – Condition of the proprietor’s right (Council Directive 89/104, Art. 5(1)(a)) (see para. 28)
Re:
| Reference for a preliminary ruling – Bundesgerichtshof Karlsruhe – Interpretation of Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) – Inscription of a sign similar to a trade mark with a service provider operating an internet search engine in order automatically to have displayed on the screen, after entry of that sign as a search term, adverts for goods or services identical to those for which the trade mark in question was registered (‘keyword advertising’) – No authorisation by the proprietor of the trade mark – Classification of that use of the mark as ‘use’ within the meaning of the provision cited above. |
Operative part:
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| Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical to that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical to those for which that mark is registered, when that advertisement does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party. |