Tatiana Kharebava outlined ‘intellectual’ boundaries of using web-based business promotion tools

By virtue of its nature, a keyword is not an advertisement or an ‘adverse event’ in relation to a registered trade mark unless it is confusing and, therefore, should be treated as a violation of intellectual property rights.

Tatiana Kharebava, an attorney and counsel at Spenser & Kauffmann, told about ‘intellectual’ boundaries of web-based business promotion tools as part of her report ‘E-Competition v. Intellectual Property’ at ‘Intellectual Property in IT’ round-table conference.

The event promoted by the American Chamber of Commerce was conducted today in Kiev. The parties to the round-table conference included representatives of the bodies of state power, bodies of local self-government, lawyers practicing in the IT field, owners and managers of companies.

In particular, Tatiana Kharebava identified major web-based business promotion tools such as contextual and banner advertising, meta-tags, framing, linking), and analyzed several important judgments of foreign and international courts reflecting global approaches applied to solving legal issues pertained to the use of such tools.

For example, as regards the use of identical trade designations, the European Court of Justice in its judgment dated 23.03.2010 in ‘Louis Vuitton v Google’ determined that the advertiser infringed intellectual property rights when using another’s trademark. Google is not liable for an infringement of trademark rights. However, it shall be liable in case it fails to delete or restrict access to respective information having discovered that an advertiser’s activities are in conflict with the applicable laws. The same court also made point clear as to minor faults and generally known trademarks in its judgment in ‘Interflora v Marks & Spencer’ dated September 22, 2011.

In fact, the legal positions set out in the judgments of the European Court of Justice may be taken into account by the courts as arguments, considerations as to harmonious interpretation of the national legislation of Ukraine in accordance with the generally accepted standards of the Acquis Communautaire, but not as a legal framework (source of law) for settling differences at issue. This is the point the Supreme Administrative Court of Ukraine referred to information letter N 1601/11/10 / 14-14 dated November 18, 2014 prepared on the basis of the findings of a judgments analysis.