Legitimate Advertising or Trade Mark Infringement? An Analysis of the Practice of Keyword Advertising amid the COVID-19 Crisis

摘要

Keyword advertising, an advertising technique that targets users of search engines, is popular around the world. It has also attracted a certain degree of controversy in the world of trade marks. This article focuses on the legality of this advertising practice under trade mark law applicable in Sri Lanka. The focus on Sri Lanka is motivated by three factors. First, the ongoing COVID-19 crisis has forced businesses to shift online, and, for those already with an online presence, to further expand. Second, and as a natural consequence, businesses have had to invest more in advertising on the internet to become more visible on search engines. To that end, some businesses have embraced the practice of keyword advertising and have employed it in controversial, if not unlawful, ways-giving rise to an emerging keyword war. Third, the health crisis has almost instantly compelled Sri Lankan consumers to rely heavily on online platforms to purchase essential goods and services. As such, consumers are now increasingly exposed to search engines and, in turn, the practice of keyword advertising. For these reasons, determining the legality of keyword advertising, as an advertising practice, in the Sri Lankan context is a matter of public importance.