*OLG Braunschweig: Obligation to check for additional keywords when using “broad match”

Image you book a keyword, e.g. “x” using the “broad match” option in Google Adwords. Now you are curious, or maybe just afraid of your competitors’ attorneys, and thus you would like to know which user queries will trigger your ad. As you don’t want to get into trouble you would be willing to “exclude” all of your known competitor’s trademarks. The AdWords Help Files aren’t really of much help to you on that issue and just tell you that:

With broad match, the Google AdWords system automatically runs your ads on relevant variations of your keywords, even if these terms aren’t in your keyword lists. Keyword variations can include synonyms, singular/plural forms, relevant variants of your keywords, and phrases containing your keywords.

So the next reasonable thing for you will be to check the Keyword-Tool as the description of the tool says that the keyword tool may be used to

–    find and add new keywords to your ad groups
–    refine your keyword list
–    find negative keywords, and
–    see additional keywords that can also trigger your ads (expanded matches)

When googling the term „expanded matches“ on is led to a site which states that:

With expanded broad matching, your ads automatically appear on additional terms we’ve matched to your keywords, so check out your potential matches. If you don’t want to appear on these terms, you’ll need to edit your keyword list and/or change your keyword matching options. […] Google analyzes millions of searches every day, and we use that data to find you matches you might not think of on your own.

The hyperlink in the text didn’t work but when goggling the link I was led back to AdWords External Keyword Tool.

So summarizing my last two hours of surfing around on AdWord’s help sites… an advertiser using the “broad match” function may check out the Keyword Tool to see which additional- /expanded- keywords or variations of his keyword can trigger his ads but there is no way for him to get certainty. If the advertiser wants to make sure his ads will not be triggered by a competitor’s trademark (assuming they are both offering similar goods or services and no justifications as e.g. descriptive use etc. given) he would thus have to enter all of his competitors’ trademarks as negative matches.

The OLG Braunschweig has repeatedly ruled (e.g. OLG Braunschweig, 11.12.2006, 2 W 177/06 JETTE)  that advertisers are under the obligation to check the additional keywords offered by AdWord’s Keyword Tool (the German court unfortunately only speaks about the list [“die Liste”]) to see if any of its competitors’ trademarks are listed there as additional keywords. If the advertiser sees a third party trademark in the list he will then have to book it as an negative keyword. If he fails to do so, he neglect his reasonable duty to check [“zumutbare Prüfpflichten”] and thus infringes –according to the OLG Braunschweig- the trademark of its competitor. If the advertiser had checked when booking the keyword and had not found any trademarks in this list, an injunctive relief [Unterlassungsanspruch]as well as subsequent costs can only be issued against him after the proprietor of the infringed trademark has informed the advertiser about the fact that his ad is triggered by the trademark (notice and take down).

What is now interesting to see is on the one hand side that the advertiser is only under the duty to check right at the time when he books the keyword and on the other side that the use of the Keyword-Tool and the subsequent check is currently obligatory in Germany. A practical solution?

1 Response to “*OLG Braunschweig: Obligation to check for additional keywords when using “broad match””

  1. 1 *OLG Braunschweig aligns to BGH’s “pcb” on “Broad Match” « Austrotrabant’s Blog Trackback on 27/05/2009 at 12:45

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