There have been a few international Courts dealing with this issue and South Africa’s first case on the subject was heard at the end of 2014. The result has in all likelihood directly affected how businesses in South Africa –who are aware of it – approach their online advertising and search engine optimisation.
The situation involves two competitors, where the one makes use of the other’s trade mark as a keyword in its Google Adwords campaign for its competing product / service and whether this use amounts to ‘passing off’, a form of unlawful competition or trade mark infringement.
The position by and large in Europe is that provided such use of a competitor’s trade mark as an Adword does not create confusion or mislead anyone, there is no problem. The South African Court adopted this position, in line with international rulings on the matter.
There remains much on be said on this issue, as the South African court was dealing with the passing off of an unregistered trade mark and not the possible infringement of a registered trade mark. The use of the trade mark in the advertisement itself was also not dealt with. It remains to be seen how our courts will tackle the issue of visibility of a trade mark in the advertisement itself or of a registered trade mark and whether this will be allowed in South Africa.
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