Burrell, Robert; Handler , Michael --- "Keyword advertising and actionable consumer confusion" [2020] ELECD 27; in Aplin, Tanya (ed), "Research Handbook on Intellectual Property and Digital Technologies" (Edward Elgar Publishing, 2020) 426

Book Title: Research Handbook on Intellectual Property and Digital Technologies

Editor(s): Aplin, Tanya

Publisher: Edward Elgar Publishing

Section: Chapter 21

Section Title: Keyword advertising and actionable consumer confusion

Author(s): Burrell, Robert; Handler , Michael

Number of pages: 19

Abstract/Description:

This chapter provides a critical analysis of keyword advertising cases in the United States, European Union, Australia and New Zealand. It reveals that after a relatively short period of uncertainty, courts have shown themselves to be comfortable with applying or tweaking existing trade mark law doctrines, such as nominative fair use and ‘use as a trade mark’, to deal with some of the challenges posed by keyword advertising. It then uses this body of law as a springboard to provide a critical reconsideration of the right to control the use of trade marks in advertising generally. It suggests that when defensive doctrines such as nominative fair use are being developed and applied, much greater attention needs to be paid to the unusual nature of right to control use in advertising, in particular.