Abstract
Often times, what is lawful is not always fair and equitable. Sometimes the law can be baffling, incoherent and unsatisfactory to those it affects. The court rulings on Google AdWords across continents are not always uniform. This is to be expected. National courts are guided by national laws, hence the disharmony. The internet has changed the “business as usual” narrative. There are close to 5 billion active internet users out of a population of 7.7 billion people. Communication and the dissemination of news now are almost in real time. Mass communication now is at a different level. This is all thanks to the internet. While print users are still in their millions and on the decline, www surfers are on the increase and in their billions. In the internet, the advertiser has found a captive market in their billions. This has become a boon for consumers. Instead of spending hours hopping from store to store in cities and villages, all a consumer needs to do is surf the net and purchase their products online from anywhere in the world. Online marketing and purchase now are the norm. The internet and Google AdWords have disrupted the marketing landscape. The model allows for a competitor advertiser to purchase, on auction, trademarked terms and phrases in order to direct consumers to their advertisements online. This is much to the chagrin of the trademark proprietor. The courts have largely held that this is legally permissible. What emerges from the literature and the courts is a matter for concern The majority of their findings appear to be in favour of Google and the competitors. Not many have spared a thought for the owner of the mark that is being traded without their consent. There indeed are many positives that spin off Google AdWords. One of the more prominent is its ability to, very quickly and effectively, market the business of start-ups to reach the vast expanse of our world. That way start-ups do not have to spend many 3 years marketing their goods or services. This can now be done at the click of a button. This tool saves the budding entrepreneur time and the almost non-existent resources. A case is repeatedly made throughout this dissertation that all the trademark proprietor seeks, is compensation for the use of her mark. The proprietor has no desire to have Google AdWords in any way banned or restricted. The disharmony in the courts across jurisdictions can be resolved by engagement at TRIPS level. The member states of the WTO need to agree among themselves about an outcome that would result in a win-win-win for Google AdWords, the advertiser competitor and the trademark proprietor. This dissertation is about Google AdWords; how it works; the legal status quo; the criticism of the legal status quo; the dissenting view, and the possible approach to a resolution of the lament of the trademark owner.
LL.M. (Intellectual Property Law)