As I’ve already stated earlier the decision of the OLG Braunschweig always used to be very “different” when it came to the issue of broad matching. In a decision issued on the 25th of March 2009 (Az. 2 U 193/08) the OLG now dropped its line of argumentation which had placed a duty onto advertisers, who used AdWord’s “broad match” keyword-option, to check if any of his competitor’s trademark were displayed in the “additional keywords”-section of the Adword’s Keyword Tool(!). If the advertiser could prove that this has not been the case he could only be sued for interim injunction in case he refused to add his competitor’s TM to his list of exclusive keywords.
Following the BGH’s “pcb”-decision the OLG now stated that advertisements triggered by a term similar to the a competitor’s trademark (broad match) does not necessarily constitute a “attribuatable use” of the competitor’s trademark under § 14 (2) of the German MarkenG.
Links: Ott, Links and Law [ger]
Dr. Damm & Partner [ger]