Internet use in unrelated keywords


You can be used as a keyword in internet by a third party trademarks?

The use of unrelated keywords search engine or Internet ads, y su uso en la web propia se considera que puede constituir una infringement of property rights holder.

Consider the question of the Judgment of the Provincial Court of Barcelona 5 March 2015.

The company "Grau i Serveis Integral SA Machinery" sued "Dulecentre SA" for having used this word "Grau machinery" breaking the industrial property the first.

When it indicated in adwords keyword "Grau machinery", the web browser shows the announcement of Dulecentre, Dulecentre so that people caught trafficking, actually they are looking at your competitor.

Machinery Grau exercised the following:

1. Declarative infringement of industrial property rights.
2. Sentence cease behavior and ban reiterate it.
3. Order to pay 100.000 euros for moral damages.
4. Order to pay 151 euros Evidence expenses.
5. Ordered to pay the 1% of the turnover of the offender.
6. Publication of the judgment.
7. Coercive penalty 600 per day until cessation effective infringement.

Dulecentre claimed it was a mistake by bad advice Google, that there was no bad faith and there has been no damage to the plaintiff.

The Commercial Court No. 8 Barcelona stated that such conduct constituted an infringement of trademark and trade name against Grau Machinery. So he condemned Dulecentre to cease such acts, It was prohibited from using the term "Grau machinery", he was sentenced to pay the expenses incurred in obtaining evidence and payment 3.989 euros in damages. He rejected the request for compensation for moral damages for lack of proof thereof.

Grau appealed Machinery. He insists that it should grant compensation for moral damages. The compensation must be 1% of the turnover. Should the publication of the judgment. Last, it must be ordered to pay the defendant.

About the moral damage

The judgment of the Commercial Court dismissed the claim for condemnation daño moral, considering that the plaintiff mistook him for the economic damage.

The Chamber recalls the literal Article 43.2 Trademark Law, establishing: “For his moral damage compensation shall unproven existence of economic damage ".

Also, Article 13,1 Directive 2004/48 / EC provides that:

"When the judicial authorities set the damages) They take into account all relevant aspects, as the negative economic consequences, including lost profits,, which the injured party has suffered, any unfair profits made by the infringer and, where appropriate, elements other than economic factors, such as the moral prejudice, caused by the infringement to the right holder ".

Interprets the Chamber compensation for moral damage does not occur unconditionally. The moral damage is not a necessary consequence of the infringement. Thus, for compensation, it is essential that their reality is proved (SAP Barcelona 6 June 2006, STS 19 April 2007).

The moral damage is not damage "in re ipsa" but the reality is damage must be satisfied as in the process.

The moral damage is psychological sufferings endured by the victim as a result of the wrongful conduct which is not specified in a patrimonial injury but consist of affliction, suffering or pain. Therefore, to correspond to a psychological level, not easy to be suffered by a company but are more suited to individuals. And you can not identify the legal entity damage suffered by the individual acting as administrator.

The possible loss of prestige of the brand, it is not a moral damage, they are valued in compensation for financial loss, to be compensated with the provisions of Article 43.1 and 43.3 Trademark Law.

On compensation for damage

Article 43.5 provides that the proprietor of the mark without proof, entitled to receive compensation for damages the 1 percent of the turnover made by the violator with illegally marked products or services. However, in this case, to be an umbrella brand that is reflected in all activities of the company, the Chamber considers that:

a) It should be applied to the total turnover of the company.
b) It should be limited to the months in which the infringement actually occurred.

Last, Room condemnation resolution to publish on the Internet and an online trade publication.

Ultimately, Internet use in as keywords of foreign brands, It can be successfully claimed in court. Internet is increasingly present in the courtrooms.

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