The Austrian OGH got two different interpretations/meanings of a technical term mixed up in its Wein&Co decision, thus its decision is not conclusive. As a consequence, Austrian and German authors (Noha and Baars/Troge) have argued that the OGH might actually have generally misunderstood the nature of Keyword Advertising, as the OGH at some point argues that Google displays ads within it’s (organic) search results (= Paid Placement).
I partly disagree as I argue that the court got the basics right and that the basic ratio of the decision is not utterly mistaken, but that the court at some point confused the two terms “Trefferliste” (List of Hits) and “Suchergebnis” ([organic] Search Results) and thus has delivered a partially inconclusive decision. For further observations about other possible (visually misleading) influences onto the court please refer to my previous post.
The broad interpretation of the term “Trefferliste“:
In its Wein&Co (OGH, 20.03.2007, 17Ob 1/07g) decision the Austrian Supreme Court basically relied on the terminology and its interpretation as used by the lower instances:
“Suchergebnis” = (organic) Search Results: These are the results provided by Google. The court of first instance describes the whole Ranking Process quite well (p.7 et seq).
“Trefferliste” = List of Hits (broad meaning): This term describes the left side of a SERP (Search Engine Results Page), which consists not only of the search engine’s (organic) Search Results, but also includes Top-Ads (Ads on the top-left side, displayed against a (pre April 2007) light blue background, bearing a sign, marking the light blue section as being a “Anzeige” (sponsored Link)). The OGH uses this (broad) interpretation in the beginning of its decision, but notes however that the labelling of the ads by Google is “more or less” clear.
Trefferliste: broad meaning (3.1)
In 3.5 the court stated that the reference to the site of the defendant (Ad) was displayed on top of the reference to the website of the plaintiff inside the List of Hits (“Trefferliste”). (broad meaning)
Trefferliste: broad meaning (3.5)
The alternative/narrow interpretation of the term “Trefferliste“:
Things however got complicated when the OGH returned to its earlier understanding of the term List of Hits as a synonym for the much narrower term (organic) Search Results. The OGH itself has repetitively used the narrow interpretation in e.g. its Numtec-Interstahl and its Glucochondrin descision. Please see below that the OGH has put the word “Trefferliste” in brackets behind the word “Suchergebnisse” which I see as an indication that the OGH, as opposed to the lower courts, sees the List of Hits to be the same as the (organic) Search Results (narrow interpretation). The lower courts in Wein&co had mostly used the broad interpretation.
Trefferliste: narrow meaning
In 3.4 the court also states that the AdWord was displayed immediately above the List of Hits (“Trefferliste”). As there are usually no further ads or banners above the Top-Ads, I take this as another indication that the court saw the List of Hits to be the same as the (organic) Search Results.
Trefferliste: narrow meaning (3.4)
The court used two significantly different interpretations of the term List of Hits (“Trefferliste”) within one decision:
-Once in a broad meaning to include also Ads shown above the (organic) search resuts: (e.g. 3.5) , and
-once in a narrow meaning, just comprising the (organic) Search Results (e.g. 3.4)
The court used the broad interpretation to be able to include Top-Ads into the List of Hits. The court subsequently however applied the narrow interpretation in relation to the question of the likeliness of confusion and thus saw/treated Top-Ads to be a part of the (organic) Search Results.[!] I agree with the court that users expect to see search results inside the (organic) search results which have been ranked in accordance with fair and relatively unbiased algorithms. Thus, the display of ads inside the (organic) Search Results would increase the likeliness of confusion. However, the way with which the court expressed itself in the decision incorrectly suggests that Google engages in Keyword Buying (= Paid Placement = selling ad space within its search results).
The source of all this confusion obviously lies in the different ways the plaintiff and the defendant used the term “Trefferliste“. While the plaintiff, represented by Dorda Brugger Jordis, used the broad interpretation to back up its (Paid Placement) claim, the defendant, represented by Ferner Hornung & Partner, used the narrow interpretation to back up their claim (please compare p. 2 last paragraph, first sentence and page 5, second praragraph, last sentence of the HG’s decision).
The court in Wein&Co however, as opposed to the lower instances, apparently got the terms List of Hits and (organic) Search Results mixed up and thus reached a result which is partly not coherent.
 The decisions of the lower courts in the “Wein&Co” case can be downloaded as PDFs by clicking onto the respective link. HG Wien_34Cg 70/05h_27.12.2005; OLG Wien_2R 28/06m, 27.07.2006.
 [The court of first instance (HG Wien) used mainly used the more precise term “Suchergebnisse” but also the terms: “Ergebnisliste” (p.10) and “Trefferleiste“[sic!] (p.26) in both interpretations (narrow p.5, broad p. 10); The court of second instance (OLG Wien) was far less clear and used the phrase “bei den Trefferlisten” which could be translated as “next to the List of Hits“. However, also the court of second instance saw the ads to be above or beside the (organic) search results thus used the broad interpretation.
 The German BGH however, also applied the “narrow“ interpretation of the term “Trefferliste” in his Bananabay-decision. The Austrian OGh however, used the term “Trefferliste” in its Bergspechte decision in the narrow meaning again. In the text of the reference the court referred not only to the term “Trefferliste” but also circumvented the issue by speaking more vaguely abut “ads [...] displayed on the screen“.