Ever since working on the topic of keyword advertising (early 2007) I was of the opinion that the OGH’s point of view that Top-ads should be seen as “ads inside the organic results” was mistaken. Today I can’t help but stress the fact that the ECJ didn’t even see a need to answer the respective question in the OGH’s reference in “Bergspechte” (C-278/08).
Further I would like to thank Noha, Fuchs and Wukoschitz who were the only Austrian authors (to my knowledge) who have always questioned the OGH’s opinion while most other authors have restricted themselves onto (slavishly) repeating the court’s opinion which has obviously always been against common sense. 
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