La capacidad de absorción

• From right to left: Banner Ad of the mobile network “02”, the Printer Ink Shop

“Ink2All”, and Banner Ad from ScreenSavers.com.

4. Material on the Internet

The Internet can be compared to a million books of which a reader can open any page in just one click. The contexts of these books are varied. Yet, it is common for books and magazines to be full with advertisements, especially ones displaying images or signs used as trade marks. Likewise, the Internet contains many websites that have a number of traditional trade marks displayed. For example, in eBay.com, many trade marks were seen. Furthermore, eBay is also a registered trade mark in many jurisdictions and for many classifications. As a consequence, trade marks may appear anywhere on a web page; in titles, content, pictures, advertisements or in the background. However, there is a question as to whether such displays of trade marks on the Internet constitute trade mark infringement.

a. Web Background

A web page’s background shows trade marks on the Internet both visible and invisible.

The visible background is called “wallpaper” and is a scene behind the contents of a web page. It can be a picture, graphic, word, or just plain colour. The invisible background is, for example, black words written on a black background, which is

invisible to Internet users but readable by search engines.¹⁴⁶ If both types of background display trade marks, Internet users tend to associate the background with the origin of the trade mark. Users may think that the web page has been sponsored by, or is associated with, the owner of the trade mark. A competitor can also use this method to pass off the web page of a senior mark.

• Background of the webpage shows logos of the website which is also a registered trade mark with the United State Patent and Trade mark Office (USPTO). From

<http://uk.match.com/uk/mlh.aspx?TrackingID=509254&BannerID=561203&gclid=CPT1u8CysoICFUg IQgodgXpqbg>, (accessed on 5/1/2006).

b. Content

Sometimes, the content of a website relates to the products or services of a particular brand. It is also possible that users will associate the webpage and the origin of a trade mark in the brick and mortar world from the display of the content of the website. For example, at healthychoice.com/eatwell,¹⁴⁷ Internet users may want to buy “ConAgra Hearty 100% Whole Grain Bread” after reading its content. The creator of the website obviously attempts to induce Internet users, especially those who are concerned about health, to buy a particular product under the trade mark “ConAgra”. There are links or hyper-links to other websites among the content as well. These links are common characteristics of the Internet, and are normally presented as trade marks. Examples include the blue letters in the picture below; and generally whenever a computer mouse

146 A search engine detects invisible words in the same way as it detects metatags. The use of trade marks as invisible words therefore, results in the search engine’s search result pages. The more entry a trade mark has, the more the website is likely to be found or “hit”.

147 See Healthy Choice' ConAgra Food <http://www.healthychoice.com/livewell/lw_tips.jsp>

(22/12/2005)

is dragged to a link, and the cursor is automatically changed from an arrow to a hand icon, unless the computer is set otherwise.

• <http://www.healthychoice.com/livewell/lw_tips.jsp> (accessed 22/12/2005).

• Mouse’s cursors: an arrow and a hand icon.

i. Advertisements

An advertisement by a specific producer usually contains a logo or a picture of its trade marks. Trade mark owners have chosen the Internet as an alternative way to advertise their products or services, where the primary goal of an advertisement is to attract Internet users to look and click on the advertisement and reach the company website. If the advertisement is sufficiently interesting a user may buy the product or service from the website. However, it is not always the case that an advertisement will be made by the producer; a competitor or an advertising company may create an advertisement, putting the other’s trade marks in their own advertisement. For example, in Playboy v.

Netscape,¹⁴⁸ Playboy claimed that Netscape had put an unlabelled advertisement alongside a search engine’s result page for the keyword “playboy”. Such an activity created confusion for Internet users as to whether the advertisement came from Playboy.

The Ninth Circuit court agreed that the advertisement had created “initial interest confusion” in relation to the Playboy trade mark and an injunction was granted in

148 Playboy Enterprises, Inc. v. Netscape Comm. Corp.354 F.3d 1020 (9th Cir 2004) (See also

Brookfield Communications Inc., v. West Coast Entertainment Corp. Federal Reporter third series United States Court of Appeal for the ninth circuit For definition of Initial interest confusion on the Internet) .

favour of Playboy. The case was the first triumph of a trade mark owner over a web banner advertiser.

• From <http://www.pepsi.com/home.php>, (accessed 5/1/2006).

ii. Illicit content material

On the Internet, content is published without strict controls, although in some countries there are policies that restrict illicit-content websites by closing the means of accessing to the Internet via the ISP. However, users in other countries can still retrieve such content. Illicit content normally refers to violent, pornographic, or other improper materials. If a trade mark used in the physical world appears on an illicit website, such as on a pornography website, a user may assume that that trade mark owner owns or sponsors such a website. Consequently, the goodwill of that trade mark will be blurred or tarnished, even if there was no confusion between the mark and the website.