Trademark protection in the virtual environment: the sponsored links system

Abstract

The study examines the use of registered trademarks in the virtual marketing campaigns known as sponsored links. It starts from the distinctive function of the trademark and its protection under article 5, XXIX, of the Federal Constitution and under Law No. 9,279/96, describes how the sponsored links service operates and the Google AdWords policies, and analyses the case law of the Court of Justice of São Paulo on the subject up to February 2017. It discusses in which cases third parties may use registered trademarks in online advertising, when such practice is deemed abusive and gives rise to liability, and to what extent prior control by the application provider is feasible in view of the principle of specialty, the limits of article 132 of Law No. 9,279/96 and the liability regime of the Brazilian Civil Rights Framework for the Internet. It maintains that the duty of verification falls on the advertiser, who is liable for material damages and, as a trend, for moral damages as well.