Obviously the Austrian OGH as well as the Dutch Hoge Raad de Nederlanden have seriously doubts if Top-Ads should be seen as separate ads above the list of search results (“list of hits“), as the OGH has stated in section 3.5 of its Wein & Co decision that Top-Ads are a to be seen as being within the search results. Thus the OGH and the Hoge Rad de Nederladen at least implicitly alleged in their references that advertisers and search engines might carry out a practise usually referred to as “paid placement or keyword buying“. Also the textual labelling appears not to be sufficient for the OGH. Thus the second question of the “Bergspechte” reference for preliminary ruling by the Austrian Supreme Court reads like following:
(A) Is the trade mark proprietor’s exclusive right infringed […] regardless of whether the accessed advertise- ment appears in the list of hits or in a separate advertising block and whether it is marked as a ‘sponsored link’?
(B) […] is the fact that the advertisement is marked as a ‘sponsored link’ and/or appears not in the list of hits but in a separate advertising block sufficient to exclude any likelihood of confusion?
When reading through the GA’s opinion paragraph 10 truly impressed me as it said in a very clear and unambiguous language that:
10. Google also operates an advertisement system called ‘AdWords’, which enables ads to be displayed, alongside natural results, in response to keywords. Ads typically consist of a short commercial message and a link to the advertiser’s site; they are differentiated from natural results by being presented, under the heading […], either at the top of the page, against a yellow background, or on the right‑hand side. (8)
The parties have provided documents in support of their opposing views as to whether internet users truly distinguish between natural results and ads.
I’d like to summarize paragraph 10 as following:
– Contrary to the OGH’s view since “Wein&Co” the GA does not see Top-Ads to be a part of the (organic) search results. Thus the GA is not of the opinion that Google accepts money to rank ads in its search results (“Keyword Buying”)
– The GA seems to see the labelling of the ads to be sufficient as he does not refer to them as labels but “headings” which would indicate that they are clearly visible.
– When referring to the coloured background of the Top-Ads the GA seems them as a way to “differentiate” ads from (organic) search results and does not, as the OGH does, see them as a kind of highlighting.
– According to Footnote 8 within paragraph 10 the AG has not decided (yet) how to address the issue of likeliness of confusion. I personally wouldn’t be surprised to see the GA coming up with a “multi factor test for the likeliness of confusion” as suggested by e.g. the District Court of Massachusetts in its Hearts on Fire Co v BLue Nil Inc decision.