As I kept researching for my Doctoral thesis at the Karl-Fanzens Universtät Graz about [Trademark and Unfair Competition Aspects of “Keyword Advertising” from the Advertisers Perspective] I wanted like to share some of the ideas I come across…and hope for your response & feedback.
This blog has not been created to entertain you; its more like a notepad for me. I know that my topic is already quite specific and thus I find it hard to discuss it with other people. So, if you’re also into this topic or if you just enjoy reading my stuff, please let me know 😉 All opinions and errors are mine alone.
A kind of “summary in German” of most of the ideas I’ve posted on my blog during the last couple of months can also be found under: Schubert/Ott, Adwords – Schutz für die Werbefunktion einer Marke?, MarkenR 2009, 338.
If you want to know more about who I am please check out my LinkedIN profile.
Public Disclosure pursuant to § 25 Mediengesetz: (Austrian Media Act):
Medieninhaber/Herausgeber:
Maximilian Schubert, 8055 Zürich
Grundlegende Richtung:
Bereitstellung von Informationen für Interessierte im Zusammenhang mit meiner Dissertation zum Thema; “Marken- sowie wettbewerbsrechtliche Zulässigkeit der Praxis des Keyword Advertising aus der Sicht des Werbenden” (sowie gelegentlich zu verwandten Bereichen wie etwa Suchmaschinen, Datenschutz, etc. ), ohne Anspruch auf Aktualität oder Vollständigkeit.
Kontakt:
Jurist.0.8.15[x]gmail.com
Research for my Doctoral Thesis by Maximilian Schubert is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 Austria License.
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Austrotrabant's Blog 
Hi Maximilian,
Great blog.
looks like you and I are doing research in similar areas.
My details are at:
http://www.markbender.info/profile if you would be interested in linking up
Mark Bender
You’re most welcome! I’ve already browsed your site a bit but I haven’t found anything directly related to Keyword Advertising. What is your exact field of research? Are there any publications you’d recommend me?
AND:.. I’ve read in Google’s latest quarterly report that there have also been Keyword-Advertising (AdWords)cases in Australia too. Do you know anything about that?
I can email you some details of my research and some links for the Australian case – it is currently underway, no decision yet – it is not a TM action, but is being bought under the ‘misleading and deceptive conduct’ provisions of our Trade Practices Act – which is consumer protection and competition legislation.
what’s the best email address for you – or you can email me from http://www.markbender.info/profile
Hi Maximilian
I have just come across your blog, which looks great!
I’m very interested in the adwords issue. I haven’t written anything yet about it, but definitely I’d like to — maybe comparative US EU analysis
I’ve been dealing generally with the intermediary service providers exemptions of liability (this was my doctoral thesis, in Spanish though)
A couple of English papers can be found in my ssrn page: http://ssrn.com/author=606095
I have recently put together a blog (in Spanish, for now) to follow some case law: http://responsabilidadinternet.wordpress.com/
Best,
Miquel
So what do you think about the ECJ expanding the scope of Art 13 of the eCommerce Directive onto search engines and Art 14 onto AdWords?
Best regards,
-max-
Max,
Sorry for such a big delay in replying!
I am not sure what you mean by the ECJ expanding the scope of Art 13 of the eCommerce Directive onto search engines? If you are referring to the caching operation of search engines, well, I think it is clear that Art. 13 deals only with proxy caching, and thus doesn’t cover neither the initial copying by a search engine’s crawler, nor the making available of the cached copy by the search engine through the so called “cached link”. As I tentatively pointed out in this article (http://ssrn.com/abstract=1135274) (although dealing with the DMCA), if we want to shield the making available of cached copies we should probably cover it through a safe harbour devoted to search engines, rather than expanding Art. 13 (or 512(b) of the DMCA).
As to the inclusion of Adwords under Art. 14, well, this links to the Opinion of Poiares Maduro. To begin with, it is clear to me that search engines are information society services. So I agree with this part of the conclusions of the AG—though not with the way he reaches it. I think it is just a question of how information society are defined in the Directive. As to the scope of Art. 14, the text of the ads (and the link they contain) may be considered content provided by a third party, and stored (and shown) by Google. There’s room to consider that Google is hosting the ad in the sense of Art. 14. Actually there have been already some decisions in France considering that an aggregator website similar to Digg is hosting the links posted by the users, and thus shielded by the hosting safe harbour in the LCEN (see http://www.legalis.net/breves-article.php3?id_article=2489).
What do you expect from the ECJ? Do you think it will follow Maduro’s opinion?
Best
Miquel
Hi Maximilian
Your web site is awesome!
I just find it and I am very interested about your last post about empirical analysis. I am finishing an article (in Spanish) about unfair competition and use of competitor trademark in google adwords.
I am also litigating the first case in Argentina for the plaintiff.
Regards
Pablo
Hi Max, I just came across your blog. Nice work! Well done! Good luck for your doctoral thesis! Best regards from Stuttgart! Your friend
Hi Maximilian,
I came across your great blog while searching material for a brief paper on keyword advertising (in Italian) I was drafting for a book.
I was teaching trademarks in my University (Bologna, Italy) this year and now I’m thinking about giving a seminar on comparative legal issues of keyword advertising (and, for sure, your blog is a great information source).
Let’s keep in touch.
Best,
Giorgio
Dear Giorgio,
Although I reckon you’ve got pretty much the same materials I have, please feel free to contact me if you need any further material about any issue (trademark law,law of unfair competition, duty to label ads, etc …). I usually publish posts which I assume are -kind of- general interest and/or novel. Thus I try not to dig too deep not to bore my readers with theoretical stuff. So there is still plenty material left in case you are interested.
I will hold a presentation at a conference (IRIS 2010) mid-February in Salzburg, mainly speaking about future trends of Keyword Advertising (Google Maps Naviagtion, Augmented Reality, Internet of Things, …). I will soon after the conference publish this content also on my blog.
Thank you for your feedback. I am really glad to you like my ideas, which, until handing in my dissertation, would otherwise remain just some ideas hidden somewhere in my 350+pages something dissertation.
Best!
-max-
Dear Giorgio,
This link might be of interest for you:
http://ipkitten.blogspot.com/2010/04/counterfeits-can-consumer-also-be.html
Kind regards,
Austrotrabant
Dear Maximilian,
I am currently doing research on the liability of advertising platforms like Google Adwords for unauthorized trademark use. Your website is of great help, thank you!
http://www.ivir.nl/staff/kulk.html
Best, Stefan
Max — Thanks for maintaining this blog! Did we ever cross paths when I was guest-teaching at Graz a few years ago? I’ve been interested in the trademark aspects of keyword advertising too, though my research has focused primarily on the US aspects.
Hi Greg,
thank you for your comment. I think you were teaching in Graz in spring 2007 and during that time I was a student of Andres in Edinburgh. Thank you for the kind words regarding my blog. I started this blog out of desperation as I literally found none to talk to about this topic when I started writing my PhD on this topic and yes of course I’ve read you articles and I think I’ve even cited the “Google’s Law” a couple of times in my doctoral thesis.
Speaking of my doctoral thesis, I am glad to say that I’ve finally submitted four copies (477 pages each) to my university last week and as soon as I’ve caught up with all the work that I had to “postpone” during the last two month I’d like to focus onto the topic of Augmented Reality. I’d especially like to analyse if and to what respect the ratio of the ECJ’s Keyword Advertising decisions (advertising function = IIC???) can be applied onto the use of a third party trademark to trigger the display of specific information in an AR-environment … or to ask how the labelling of commercial content in an AR environment could/should be done.
In case you are aware of any scholarship that could pay my rent while pondering about such things please let me know 😉
All the best & kind regards,
Maximilian
Here’s a link to an Australian (first instance) ruling on Google, adwords etc.
Keep up the great work!
Hi Maximilian,
Nice blog. On December 8, 2009 you blogged about a Danish Supreme Court decision which MAQS Law Firm had translated, with a link to our translation. This document has moved tohttp://maqs.com/sites/default/files/Danish%20Supreme%20Court%20keywords%20decision_0.pdf
You might want to update your link.
Best regards,
Peter Gustav Olson
MAQS Law Firm
Thank you!