Below in the (Top-)ad text a button called “video plus box” is situated, which will trigger the display of a video. According to Jeremy Scott of ReelSEO the advertiser gets charged “if the user either watches 10 seconds of the video or clicks through to the destination site”.
Looking at it from the law perspective, I wonder what changes such a move will bring for the legal analysis of this issue:
FORMAL: Previously only search results included videos, so from that perspective ads and search results are moving a bit closer together. On the other hand side the “distinctive colouring of the ad field” (yellow) will also be very well visible behind the video box. Although the Austrian Supreme Court argues that the distinctive colouring of the ad field is a way to highlight a certain section of the search results [sic!] users will, in my opinion, most probably realise that there is a reason why even the background behind the video box is kept in the same colour as the text ad above.
CONTENT-WISE: I wonder if people are more likely to believe that a video which uses a good/service/trademark was actually created by the owner of that certain trademark. The effort for creating a text ad is minimal, but the effort for creating a video or animation is greater, so it seems like people would more likely expect the brand owner to be the creator of the video than e.g. a reseller or a competitor.
The BGH has expressed in PCB par. 22 et seq. that users are not aware of the link between a search term and the ads displayed on the SERP, so I wonder if including more “sophisticated” content in the ad will change this perception. I disagree with the view of the BGH which says that users DO know that there is some kind of connection between their search query and the ads displayed, but that they a: don’t care about this fact and b: also have learnt that these ads are usually not relevant for them and that’s why they simply skip them when using search engines. [More information about user’s perception of Keyword Advertising: Schubert/Ott, Schutz für die Werbefunktion einer Marke, MarkenR 2009, 338 (344)]
And as soon as users/consumers can mentally link the search term (trademark or sign similar to a trademark) to the ads displayed, it will become more likely that this use of the term by the advertiser will be seen as description of origin which might lead then directly to the application of Art 5 (1) of the Trademark Directive. [good read on this topic: Knaak, Keyword Advertising, GRUR Int. 2009, 551 (556)]