Trademark protection granted limits in comparative advertising

While today‘s consumer-oriented market offers eminently wide choice in goods and services, the need between business entities to present their proposed product as excuisite becomes more and more relevant. Especially approppriate means for achieving such goal are certainly the trade mark, acting as an identifier in the market, and advertising. A special form of advertising must be emphasized in this context – comparative advertising, which can demonstrate objectively the merits of various comparable products and also stimulate competition between suppliers of goods and services to the consumer's advantage. While comparative advertising in its nature is treated under competition law, related but different branches of the legal system – intellectual property law and competition law clashes when the advertiser uses the trade mark of his competitor in order to identify goods or services being compared. Fundamendal aspects of such intersection are thoroughly examined in this work. First part of the work focuses on the range of protection that is being granted to trade marks by the European Union trade mark law. Thorough analysis includes every function of the trade mark and its cohesion with the granted protection, also problemic aspects of European Court of Justice‘s case law and its future tendencies. Second part of the work emphasizes on the importance of comparative advertising and some of its historical aspects. Its permisibility requirements are analyzed in the context of trade mark protection. Particular attention is paid to keyword advertising as to a form of comparative advertising. Specific differences on the protection of trade mark are distinguished in the context of using the trade mark in comparative advertising and beyond its scope