While trying hard to come to an conclusion how the ECJ’s ruling will affect the OGH’s upcoming decision in the BergSpechte case I stumbled about two very interesting new features Google is providing: The first feature allows advertisers to “stop a particularly pesky competitor from seeing your ads“, the second will allow users to redesign the way their search engine results page looks.
CAVEAT: THIS BLOG POST MIGHT CONTAIN SARCASM!
Ever since Google introduced Custom Search (Google tracks/logs your previous searches to provide you with “personalized” search results e.g. ranking a site you have already clicked on during your previous searches higher than in subsequent searches) I was wondering which implications this might have onto evidence in court cases. As A‘s browsing history, affects the way in which results are shown and ranked in A‘s browser, it will be hard for B, or C to come up with identical results or to proof that the way the results were presented to A (the trademark holder and his attorney, who are both eagerly waiting to catch any competitor using the trademark) are the same as they would be presented to B or C (some third party).
However, the whole thing gets even more interesting if advertiser can in future add the IP-Address of their competitors, their lawyers and the closest commercial court to your AdWords black-list, meaning that the ads will not show on their computers. The function is called “IP Exclusion” and is explained in detail in the Search Engine Journal. This technical function (called ‘IP address exclusion‘ by Google and explained >>here<< ) is –of course– neutral by nature but somehow I wonder…
Here is my personal suggestion for your AdWords blacklist:
Dorda Brugger Jordis (Austrian Lawfirm): 195.58.170.*
Oberster Gerichtshof (OGH): 86.59.28.*
The second interesting feature launched lately is that users will get the ability to redesign and configure the way search results are being displayed on the results’ page of their search engine. For detailed information please check out the Google Custom Search Blog.
Although I heavily doubt that many individual users will use this feature I can’t help but think about an “OGH-version” (OGH = Austrian Supreme Court) where Top- and Side-Ads get highlighted by annoyingly blinking red, orange and blue flash-lights, triggering an ear-piercing acoustic signal, identical to the one of an advancing fire engine, every time an Austrian user (which apparently seems to be especially simple-minded) is daring to move his mouse even somewhere close to a sponsored ad (which the OGH still suspects to be perfidiously hidden inside the ‘organic’ search results).
If an Austrian user however accidentally clinks onto an ad (they are tremendously silly sometimes) the user should then be informed that the website he/she is about to access is might not commercially related to the trademark owner, and in the case of doubt he/she should be provided a link to the local patent office, informing the user (maybe even using simple, graphical language), who the owner of the trademark in question actually is and IF the good or service advertised are within the same Nice classification (thus covered by the trademark registration) or is the trademark in question is maybe even a famous trade-mark.
(The costs for the development and ongoing maintenance of the necessary data banks etc. have of course solely be covered by the search engine, which of course remains fully liable for any fault or ambiguity, but will -after the trial period- offer these data banks to all other competing search engines free of charge.)
Oh my dear, I see cherished light at the end of the tunnel of user confusion, promising legal certainty, -without imposing undue intellectual challenges onto users-. 😉