- Melbourne Law School - Research Publications
Melbourne Law School - Research Publications
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ItemKeyword Advertising and Actionable Consumer ConfusionBurrell, R ; Handler, M ; Aplin, T (Edward Elgar, 2020-01-07)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.
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Item(Re)claiming trade mark protectionBurrell, R ; Handler, M ; DINWOODIE, G ; Janis, M (Edward Elgar, 2021-04-20)Trademark owners are allowed to, and frequently do, register their trademarks “with unduly broad specifications of goods and services, and they can register marks that contain many different elements without being required to identify those elements for which they are claiming exclusivity.” The ability to overclaim allows trademark owners to expand their infringement claims in surprising ways. This chapter explains the various ways that trademark owners can create overly broad protection, “ways in which the law facilitates and tolerates” this overclaiming, and ways to try to fix the problems of overclaiming.