El uso publicitario de marcas de moda ajenas en internet (complementariedad entre propiedad intelectual y competencia desleal)

Abstract

The advertising use of third-party brands –especially fashion products and accessories– as keywords linked to advertising links in Internet search engines is frequent. This problem has been addressed and resolved by the doctrine of the Court of Justice of the European Union and national courts of Member States of the Union, including the Spanish Supreme Court in a purely formalistic manner, falsely closing a relevant problem of our time, in view of the importance of brand positioning in the digital market. The most appropriate solution to the problem goes through an examination of the possible trademark infringement in terms of unfair competition (analyzing the case not so much by the form of behavior as by its effects on the market), or by leaving more room for the application of the doctrine of relative complementarity to resolve the case through unfair competition law, much more appropriate for situations that depend above all on the specific circumstances that occur in each case.