Posts Tagged 'AdWords'

*ECJ Wintersteiger C-523/10: A Forum Shopping (Winter) Wonderland?

On February 16th Advocate General Pedro Cruz Villalón has published his opinion on C-523/10 Wintersteiger, a case concerning a jurisdictional matters referred by the Austria Supreme Court [OGH, 5.10.2010 17 OB 8/10s, Wintersteiger].

Just about two month later, on the 19 of April 2012, the ECJ issued its  decision on this reference for a preliminary ruling.

The court found that Google AdWords TM-disputes “may be brought before either the courts of the Member State in which the trade mark is registered or the courts of the Member State of the place of establishment of the advertiser”.

What makes the case so delicate is that Austria (place in which the TM is registered) is, in regard to Keyword Advertising cases, the most right holder friendly court in the EU [OGH, 21.06.2010, 17 Ob 3/10f, BergSpechte III], while Germany (member state of the establishment of the advertiser) is fairly liberal on this matter [BGH, 13.01. 2011, Az.: I ZR 125/07, Eis.de].

We are left to see how this decision will increase legal certainty for right holders, online advertisers and of course Google itself.

I’ve updated by little chart as well:

For a deeper analysis: IPKAT: Freedom, security and justice — or skiing with AdWords Continue reading ‘*ECJ Wintersteiger C-523/10: A Forum Shopping (Winter) Wonderland?’

*ECJ Decision in C-323/09 INTERFLORA – ‘Same, Same But A Different Trademark Function’

The INTERFLORA case is based on a (seriously lengthy) reference containing 10 questions by the England and Whales High Court (EWHC) dated to May 2009. In the light of the ECJ’s Google France decisions in March 2009 the EWHC upon request by ECJ later reduced the number of questions in its reference down to 5 in mid-2010. AG Jääskinen published his opinion  in early March 2011 and the final decision by the ECJ swiftly followed  six month later.

The disputes itself concern the display of an ad by Marks and Spencer which looked like this [para 20]:

Continue reading ‘*ECJ Decision in C-323/09 INTERFLORA – ‘Same, Same But A Different Trademark Function’’

*’Paid Inclusion’ / ‘Keyword Buying’ – A Dangerous Road To Go For Microsoft

Microsoft’s search engine Bing.com is obviously currently testing a new layout which includes advertisements among its search results while insufficiency labelling them as advertising. This practise is known as ‘paid inclusion’ or ‘keyword buying’ on could prove as a dangerous road to go for Microsoft.

Yahoo! has already tried to go this way in 2009 but soon again ended its paid inclusion program after intensive controversy on this issue. Continue reading ‘*’Paid Inclusion’ / ‘Keyword Buying’ – A Dangerous Road To Go For Microsoft’

*Microsoft’s adCenter Adopts Google-Like TM Policy – Microsoft ‘free-riding’ on Google’s Success in Courtrooms All Over The Planet

Microsoft recently announced that they will from March 3rd on not prevent advertisers in the USA and Canada from booking third party trademarks as keywords on its adCenter platform. adCenter delivers keyword ads to Microsoft’s search engine Bing as well as to Yahoo! (theSearch Alliance‘).

Microsoft will however, as a consequence of a complaint, continue to monitor the use of third party trademarks in the text of their ads. Microsoft allows advertisers to use third party TM also in the text of their ads but only under certain conditions (eg reseller, informational websites, comparative advertising, … ).


Microsoft effectively aligns it’s TM Policy with the TM policy Google adopted in 2009 for the USA & Canada and which Google later expanded in 2010 -post Google France- to pretty much the rest of the world in 2010. (Google changed their TM-policy actually twice in 2009 but let’s skip that tiny fact). So in fact Microsoft will take a step which not only Google has already taken back in 2009 but also which Google had to ‘bravely‘ fight for. Thus Goldman correctly remarked that Microsoft is now effectively ‘free-riding‘ on Google’s success in courtrooms all over the world.

Microsoft announced that:

Starting on March 3rd, Microsoft will modify its trademark policy pertaining to search advertising.  It will continue to investigate complaints about trademarks in advertising text but will no longer investigate complaints about trademarks used as keywords.

Continue reading ‘*Microsoft’s adCenter Adopts Google-Like TM Policy – Microsoft ‘free-riding’ on Google’s Success in Courtrooms All Over The Planet’

*It’s the Ad text, stupid; cryptic answers won’t help to establish legal certainty for online advertisers

I am glad to announce that the Oxford University Press has agreed to allow Dr. Ott and myself to link to the abstract, the full text (click the banner below) and even to the PDF version of our article published in the Journal of Intellectual Property Law and Practise.

At this point I’d like to thank once again all the people who contributed to this article by e.g. sharing their practical knowledge or by organizing an event that proved crucial for the better understanding of the subject; special thanks are directed of course to Dr. Ott who helped and encouraged me to express my ideas and views on the topic of keyword advertising.

*Defeat For Google – Victory For TM-owners? Austrian OGH First National Court To Decide On Keyword Advertising: OGH 21.06.2010, 17 Ob 3/10f, Bergspechte

The Austrian Supreme (OGH) court ruled on the 21st of June 2010 in 17 Ob 3/10f BergSpechte, that even ads that don’t contain the third party trademark may lead to a likelihood of confusion. As a result the advertiser violated § 10 (1) Z 2 MSchG (= Art 5 (1) lit b ECD = § 14 (2) Z 2 dMSchG). To my knowledge the Austrian court is the first national court to render a decision based on the ECJ’s keyword advertising decisions.

The court based its reasoning on the fact that the advertiser had failed to rule out any likelihood of confusion by adding ‘appropriate clarifying indications‘. The (Display-)URL shown below the ad of the defendant (‘www.trekking.at‘) was however the decisive issue in the case as the court found that this (generic) URL would make it ‘appear more likely for an internet-users to assume that a connection between the ad and the TM-owner or a entity economically connected to the TM-owner exists, as both search terms used (‘Edi Koblmüller‘, ‘Bergspechte‘) were highly original and did not at all describe the services advertised. As a consequence the court ruled that a likelihood of confusion existed.

As the decision only deals with the admissibility of an interim injunction the attorney of the defendant, RA Dr. Michael Wukoschitz,  has called the ruling a Pyrrhic-victory as the defendant was not generally forbidden to use the TM of the claimant but only forbidden to use it in a misleading way. As the court has found that the ads in question (please see illustration/image below) are deemed to be misleading this might only be a small comfort. Taking into account that the OGH’s decision might have been a different one if the claimant had used a non-generic but very distinctive URL, it remains to see how the OGH will decide in such a case.


Discussion:

The decision itself is quite surprising, especially in the light of Google’s recent policy reform and the fact that the German Supreme Court (BGH) found that it would be ‘far fetched’ to assume that users would establish a connection between their search queries and the ads displayed (para 19 BGH, I ZR 125/07, Bananabay, GRUR 2009, 498).

Looking at the decision itself, it soon becomes obvious that it comes from the same judge who has already made an unfortunate ruling in the Wein&Co case, which was equally questionable. What especially strikes me is the how easily the court established a likelihood of confusion. This is especially so as the ads were aiming at mainly young people who plan to travel the world ‘off the beaten tracks‘ and I do think it is questionable that someone who is planning to cycle through Ethiopia on his bike won’t pay a bit more attention to the search results when preparing the trip. But well, it still seems that the Austrian Supreme court sticks to an average Austrian internet user who is probably best described as fairly internet-illiterate or at least far from being web-savvy.

Furthermore I wonder what an ad would need to look like not to confuse and average Austrian internet user. What is the advertiser does not have a (distinctive) domain which clearly indicated him/her as being a separate entity and moreover, not economically connected to the TM-owner? So it might be a good thing that the OGH considered the Display-URL but its conclusion somehow fail to convince. Should the Display-URL be really the decisive factor? What about all the happy second-domain-owners which own e.g the much sought-after domains www.laws.at, www.sarcasm.at, http://www.bike.co.uk or other generic terms. Should they be disadvantaged when using keyword advertising?

I think the decision still has got its flaws and is based on an internet-illiterate user, but on the positive side, for once the court was forced by the ECJ to at least finally get the separation between the search results and the ads right (para 1). That’ at least some progress! The second positive issue is that the court declined the plaintiffs claim to generally forbid the plaintiff to use its trademark. So yes, the use of third party TM as keywords is also allowed in Austria, only problem, nobody can tell advertisers under which conditions….


What did the ad look like:

The original Side-Ad looked roughly looked like that (reconstruction by Austrotrabant):

Rough translation of the text of the ad by Austrotrabant:

Ethiopia per bike
trip of a lifetime through the north with
lots of culture. Sixteen days from 20.10.
http://www.trekking.at

English translation by Austrotrabant:

10 …In none of the two ads it has been put straight through appropriate indications, that no economical connection between the plaintiff and the defendant exists. In both cases only the Internet-address of the defendant was supplied (http://www.trekking.at), which because of the generic term used, lead to no attribution to a particular entity. Both offers [ads] concerned outdoor-tours, as also offered by the plaintiff

11 For a normally informed and reasonably attentive internet user it was thus not cognizable that the ads [ads] stem from an entity which is not economically connected with the plaintiff. It appeared more likely [ ... es lag vielmehr nahe  zu vermuten ... ] to assume the opposite as both search terms showed a high degree of originality and not even vaguely describe the services offered [advertised]


German version:

10. Im vorliegenden Fall geht es um zwei Anzeigen, von denen eine bei Eingabe des Suchwortes “Eid Koblmüller” aufgerufen wurde, die andere bei Eingabe von “Bergspechte”. In beiden Anzeigen wird für Reisen geworben (“Trekking- und Naturreisen zu den letzten Berggorillas oder Wandern auf alten Pilgerrouten”, “Äthiopien mit dem Bike, Traumreise durch den Norden mit viel Kultur, 16 Tage, ab 20.10.”). In keiner der beiden Anzeigen wurde durch einen entsprechenden Hinweis klargestellt, dass keine wirtschaftliche Verbindung zwischen der Klägerin und der Zweitbeklagten besteht. Angegeben waren jeweils nur die die Internetadresse der Zweitbeklagten (http://www.trekking.at), die aufgrund des verwendeten Gattungsbegriffes keine Zuordnung zu einem bestimmten Unternehmen erkennen lässt. Gegenstand des Angebots waren jeweils Outdoor-Reisen, wie sie auch die Klägerin anbietet.


11. Für einen normal informierten und angemessen aufmerksamen Internetbenutzer war damit nicht zu erkennen, dass die Anzeige von einem Anbieter stammen, der mit der Klägerin in keiner Weise wirtschaftlich verbunden ist. Es lag für ihn vielmehr nahe, das Gegenteil zu vermuten, weil beide Suchworte ein hohes Maß an Originalität aufweisen und die angebotenen Dienstleistungen nicht einmal ansatzweise beschreiben.

12. Der normal informierte und angemessen aufmerksame Internetnutzer konnte daher annehmen, durch Anklicken der jeweiligen Überschriften auf Seiten zu gelangen, die, wenn nicht von der Klägerin, so doch von einem ihr wirtschaftlich verbundenen Unternehmen betrieben werden. Der dadurch begründeten Verwechslungsgefahr hätten die Beklagten durch entsprechende Gestaltung der Anzeigen, wie etwa durch Aufnahme eines aufklärenden Hinweises, entgegenwirken müssen (s Anderl, Anm zu C-278/08 – Bergspechte II, ecolex 2010, 477f; Stadler, EuGH: Google verletzt mit AdWords keine Markenrechte, MMR Fokus, MMR 5/2010, VIII).

13. Als Zwischenergebnis ist daher festzuhalten, dass die durch die Verwendung einer Marke (eines Markenbestandteiles) als Keyword generierte Werbung eines Dritten (der Beklagten) in die Recht des Markeninhabers nur dann nicht eingreift, wenn aus dieser Werbung für einen normal informierten und angemessen aufmerksamen Internetnutzer leicht zu erkennen ist, dass die in der Anzeige beworbenen Waren oder Dienstleistungen weder vom Inhaber der Marke noch von einem mit ihm wirtschaftlich verbundenen Unternehmen stammen.

(emphasis added by Austotrabant)


[Word game?: the BGH used the expression 'far fetched' (fern liegend) while the Austrian court used exactly the opposite version of the expression "close guess" (nahe liegend). Coincidence?]


UPDATE (22.08.2010): The Austrian court has published the decision. I placed a link to the document at the beginning of this post.

*Block Your Competitor from Seeing Your [Infringing] Ads & Redesign Your Own Google Results Page

While trying hard to come to an conclusion how the ECJ’s ruling will affect the OGH’s upcoming decision in the BergSpechte case I stumbled about two very interesting new features Google is providing: The first feature allows advertisers to “stop a particularly pesky competitor from seeing your ads“, the second will allow users to redesign the way their search engine results page looks.

CAVEAT: THIS BLOG POST MIGHT CONTAIN SARCASM!


Ever since Google introduced Custom Search (Google tracks/logs your previous searches to provide you with “personalized” search results e.g. ranking a site you have already clicked on during your previous searches higher than in subsequent searches)  I was wondering which implications this might have onto evidence in court cases. As A‘s browsing history, affects the way in which results are shown and ranked in A‘s browser, it will be hard for B, or C to come up with identical results or to proof that the way the results were presented to A (the trademark holder and his attorney, who are both eagerly waiting to catch any competitor using the trademark) are the same as they would be presented to B or C (some third party).

.

However, the whole thing gets even more interesting if advertiser can in future add the IP-Address of their competitors, their lawyers and the closest commercial court to your AdWords black-list, meaning that the ads will not show on their computers. The function is called “IP Exclusion” and is explained in detail in the Search Engine Journal. This technical function (called ‘IP address exclusion by Google and explained >>here<< ) is -of course- neutral by nature but somehow I wonder…

.

Here is my personal suggestion for your AdWords blacklist:

Dorda Brugger Jordis (Austrian Lawfirm): 195.58.170.*

Oberster Gerichtshof (OGH): 86.59.28.*


If you are a trademark owner yourself and you are start wondering if…. I recommend you search for your TM using the Anonymouse.org, or KProxy.com.

.

The second interesting feature launched lately is that users will get the ability to redesign and configure the way search results are being displayed on the results’ page of their search engine. For detailed information please check out the Google Custom Search Blog.

Although I heavily doubt that many individual users will use this feature I can’t help but think about an “OGH-version” (OGH = Austrian Supreme Court) where Top- and Side-Ads get highlighted by annoyingly blinking red, orange and blue flash-lights, triggering an ear-piercing acoustic signal, identical to the one of an advancing  fire engine, every time an Austrian user (which apparently seems to be especially simple-minded) is daring to move his mouse even somewhere close to a sponsored ad (which the OGH still suspects to be perfidiously hidden inside the ‘organic’ search results).

If an Austrian user however accidentally clinks onto an ad (they are tremendously silly sometimes) the user should then be informed that the website he/she is about to access is might not commercially related to the trademark owner, and in the case of doubt he/she should be provided a link to the local patent office, informing the user (maybe even using simple, graphical language), who the owner of the trademark in question actually is and IF the good or service advertised are within the same Nice classification (thus covered by the trademark registration) or is the trademark in question is maybe even a famous trade-mark.

(The costs for the development and ongoing maintenance of the necessary data banks etc. have of course solely be covered by the search engine, which of course remains fully liable for any fault or ambiguity, but will -after the trial period- offer these data banks to all other competing search engines free of charge.)

.

Oh my dear, I see cherished light at the end of the tunnel of user confusion, promising legal certainty, -without imposing undue intellectual challenges onto users-.  ;)

*ECJ: “Google France v. Louis Vuitton” Expected For The 23rd Of March 2010

The ECJ has scheduled to rule on the 23rd of March on the famous Google France, Google Inc. v Louis Vuitton Malletier (joined cases C-236/08, C-237/08, C-238/08) case.

Following the heavily discussed opinion by GA Maduro much attention will be paid to the decision as, although it only/mainly concerns the liability of Google’s AdWords program,  it may also contain clues of whether or not, the ECJ sees the use of TM-terms as keyword to constitute “trademark use” and/or if the ECJ is willing to grant extra protection to the communication- or advertising functions of trademarks.


For more information please refer to OUT-LAW,  my previous posts on that matter (here & here) or see below for my graphical summary of the opinion.

Graphical Representation of the GA's Opinion by Austrotrabant. Click to enlarge

*”Explanatory Ads” by Google

Users searching for “Michelle Obama” on Google Images will see as the first result a offensive/racist picture in which the face of the president’s wife got overlaid with the face of a monkey. [red circle] The image stems from a (Chinese) blog. The picture later got removed from the blog alongside with an apology in Chinese and English.

What makes the issue interesting however is the ad shown above the search result. [purple rectangle]

Google Image Search by Austrotrabant, not showing the original blog entry

The Top-ad reads: “Offensive Search Result, Sometimes our search results can be offensive. We agree. Read more“.


Clicking onto the link leads to a website that states:

The beliefs and preferences of those who work at Google, as well as the opinions of the general public, do not determine or impact our search results. Individual citizens and public interest groups do periodically urge us to remove particular links or otherwise adjust search results. Although Google reserves the right to address such requests individually, Google views the integrity of our search results as an extremely important priority. Accordingly, we do not remove a page from our search results simply because its content is unpopular or because we receive complaints concerning it. We will, however, remove pages from our results if we believe the page (or its site) violates our Webmaster Guidelines, if we believe we are required to do so by law, or at the request of the webmaster who is responsible for the page.

[emphasis added by austrotrabant]


However, showing an offensive photo of Michelle Obama doesn’t, according to Matt McGee, violate any of those three guidelines on its own. The blog however got removed/delisted out of Google’s index for another reason: providing male-ware. Searchengineland reported that the blog actually DID contain male-ware and the  removal was thus justified.

This is however not the first time that Google has used ads to explain/justify its search results. the Guardian reports that in 2004 when searches for the word “Jew” returned antisemitic website results Google responded with a similar approach.

*Surprisingly Clear Words: Noha on Keyword Advertising

Ever since I’ve started working on the topic of Keyword Advertising, the Wein&Co decision has always remained a mystery to me as the Austrian Supreme Court (OGH) stated in it, that Top-Ads (ads above the search results, displayed on a light blue or yellowish background) should be seen/treated as being a part of the search results. This would imply that the OGH alleges Google of paid placement = selling ad space within its search results.

In a earlier post I was already wondering to what extent the court might have been influenced by screenshots handed in by the plaintiff. Sadly enough the OGH has upheld and repeated its highly disputable view also in its quite recent Bergspechte reference.

I have always disagreed with the OGH on this certain issue and thus I was very -pleasantly- surprised to find a quite clear & explicit statement in an article by Birgit Noha [1] referencing to Baars/Troge [2], stating that:


“These arguments by the OGH give room to doubt whether the court has actually understood the setting of Keyword Advertising. One might suspect that the OGH got the principles of trademark law and the principle of diversion [betweens ads and content] mixed up[2].”
(Roughly translated by autrotrabant)

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There is nothing left for me to add ;)


[1] Noha, Neue spezifische Formen der Internetwerbung – Keyword Advertising im weiteren Sinn und rechtliche Grenzen, in Feiler (Hrsg), Innovation und internationale Rechtspraxis (2009), 589-602 (594).
[2] Baars/Troge, GRUR Int 2008, 526-531 (530).

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