SILHOUETTE PUTS AN END TO SHADY DEALING ON EBAY

AuctionBytes reports that the eyewear company Silhouette is bringing an action for trade mark infringement, dilution and false advertising against two sellers on eBay before the California District Court. It has already had some degree of success against the two companies concerned in New York, where it obtained an injunction stopping them from using the SILHOUETTE mark on their eBay sites. One of the companies has admitted that it used the mark as a keyword on its site (a practice known as “keyword spamming"), even though it did not sell Silhouette products, in order to increase the number of people visiting it. eBay itself operates a Verified Rights Owner scheme (VeRO), whereby owners of IP rights can register their rights and shut down auctions that they identify as selling counterfeit items.

The IPKat says that the legal position of keyword spamming isn’t clear in the UK. It can’t really be said that the keywords are being used as trade marks for any products the spammer is using. Following Arsenal v Reed, trade mark use isn’t necessary where the goods and marks are identical though, in Reed v Reed, infringement was not found when the claimant’s mark was used in a metatag by the defendant precisely because the defendant was not using the mark as a trade mark. The IPKat urges anyone who has any experience of the legal issues involved in keyword spamming to leave a comment below.

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The spam that first came with a key here