Temu was sued by a well-known brand!

In recent days, the "infringement lawsuit" between the well-known German shoe brands Dr. Martens and Temu has caused a lot of controversy.

Dr. Martens believed that Temu used nouns related to its brand, such as "Dr. Martens" and "Airwair", as keywords in its advertisements, thus infringing its trademark rights and filed a lawsuit in the UK High Court. Dr. Martens also stated in the lawsuit that this method of placement also lowered its display position in search results.

An industry insider said, "Global brand owners and Internet stores are closely watching the development of the case."

As a popular form of pay-per-click advertising, keyword advertising is widely used in the promotion of online retailers. For small and medium-sized sellers operating on platforms such as Amazon and Temu, when search results have the opportunity to be displayed together with brands with higher sales, they can attract potential customers at a lower price to a certain extent, thereby promoting sales.

Regarding this lawsuit, from the perspective of the advertising platform, using a third-party trademark as a keyword does not constitute infringement in itself. Whether it causes confusion among consumers is the key to determining infringement. For example, in the advertisement placed by Temu, the text or title contains the keyword Dr. Martens, and the platform believes that "this advertisement will cause misunderstanding among consumers", so this advertisement will be judged as infringement. Once it is judged as infringement, the platform will restrict or even delete the advertisement.

The platform's judgment method is not aimless. According to British case law (generally refers to court decisions that can be used as precedents to decide cases, which is an important source of Anglo-American law), when a third-party trademark is used in keyword advertising, the brand owner will only be supported in the infringement claim if consumers are confused. Of course, in some European countries, the law is more inclined to protect brand owners. For example, in 2021, the Spanish Supreme Court ruled that using third-party trademarks as keywords in advertisements may be considered infringement.

However, in the UK, since Interflora used the M&S trademark in its advertising campaign and came into conflict with it, keyword advertising will only be opposed if the advertiser misleads consumers to buy or use goods and services. In addition, the UK Court of Appeal clearly pointed out that the brand owner has the responsibility to prove that the advertiser has infringed, rather than requiring the advertiser to prove that it has not infringed. In other words, if Dr. Martens wants to win this case, it needs to provide evidence to prove that Temu's use of its trademark as a keyword may mislead users.

However, the timing of Dr. Martens' lawsuit against Temu is very important. Recently, Temu has attracted attention from relevant agencies because of its more than 45 million monthly active users in Europe. According to the requirements of the EU's Digital Services Act, once Temu is regarded as a super-large online platform, it needs to take stricter measures to deal with counterfeit goods and prevent illegal and harmful content.

Temu

Dr. Martens

Infringement Litigation