Trademark law, AI-driven behavioral advertising, and the Digital Services Act: toward source and parameter transparency for consumers, brand owners, and competitors

In its Proposal for a Digital Services Act, the European Commission highlighted the need for new transparency obligations to arrive at accountable digital services, ensure a fair environment for economic operators and empower consumers. However, the proposed new rules seem to focus exclusively on transparency measures for consumers. Statements addressing the interests of trade mark owners and underlying trade mark policy are sought in vain. Against this background, the analysis sheds light on AI-driven behavioural advertising practices and draws a parallel with keyword advertising cases to demonstrate that not only consumers but also trade mark owners have a legitimate interest in receiving information on the parameters that are used to target consumers. Moreover, lessons from the keyword advertising debate are important because they broaden the spectrum of policy rationales and guidelines for new transparency rules. Information on alternative offers in the marketplace, for instance, can strengthen trust in AI-driven, personalized advertising.