On the 8th of June Infolaw hosted a discussion at the WU Wien (University of Economics in Vienna) in which the most famous “players” of keyword advertising in Austria met for a “friendly match” to discuss the implications of the recent ECJ Google France ruling as well as the subsequent three decisions (please see the Legal-Links-Tab for a list of all references & cases) .
Mag. Clemens Appl introduced the speakers and warmly welcomed the audience. Furthermore he also reminded everybody of the upcoming IT-Rechtstag (17.- 18.06.2010). The reference to the “friendly match” stems from the way in which Mag. Birgit Noha LL.M. and Dr. Axel Anderl LL.M. presented the topic, as they held their presentations not after another but more or less simultaneously. While Noha held a presentation and thus led the audience through the various aspects of the cases, Anderl from time to time dropped in to elaborate his point of view. The speakers did a tremendous job in systematically analysing the decisions while at the same time openly demonstrating that they had almost complimentary views of pretty much every issue (esp. trademark use & law of unfair competition aspects). So the audience did not only hear profound arguments but also lively and indeed impressive court-room rhetoric.
Besides the high quality of the speakers and their first hand experience in this field also the surprisingly high-profile audience (Dr. Stephan Ott, Dr. Michael Wukoschitz, …) has to be mentioned, as some of the questions posed by the audience seriously challenged the speakers’ arguments.
Probably the most discussed issue of the evening was Google’s Keyword Tool as Anderl stated that the goal of the providers of such a tool is offer a service to people who want to promote their goods and service, while (eventually) taking into account to infringe third party intellectual property rights.
I do think that Anderl has got a point in this respect although I also see the arguments of the other side that Google repeatedly highlights to the user that he/she is solely responsible for eventually TM-infringements stemming for the selection of keywords through this tool and that the ideas provided by the tool are based upon previous searches and thus neutral. I think both sides were right in this respect and the whole issue is very much like the “Guns don’t kill people, people do” discussion. So who is to blame, the one who produces the gun, or the one who pulls the trigger? Maybe both… a bit… 😉
Concerning unfair competition the argument was raised that it is almost impossible to tell if an ad will be perceived as confusing or not as it is impossible for an advertiser to predict how web savvy the internet user will effectively be (17 year old IT-geek or retired civil servant). Thus it must be agreed with Anderl that some users will for sure get confused or even irritated by ads. These users however obviously can’t be bothered to spend a single thought on whether or not the link they are clicking is an ad or not. There is no question that (“normally informed and reasonably attentive“) users SHOULD think about this issue but however the reality (which is hard to grab for someone working on this issue for some time) is, that some users just don’t. So when speaking only about the aspect of confusion search engines might be well advised to make the labelling of their ads more distinctive and clearer.
Law of unfair competition (other than trade mark law in some respects) however does not aim to sanction every possible confusion but it aims to stop unfair practices which negatively affect the economic interests of consumers or competitors. And although I follow Noha’s view that this just isn’t the case for regular keyword advertising, I agree with Anderl that there might still be some room for further argumentation.
Thus it could be brought forward (Anderl, ecolex 2010, 447; Anderl, Der Standard 21.04.2010, Wirtschaft & Recht) that the “broad match” keyword option can be compared to the “catch all function” for domains (domain wildcards). Although I think that this comparison is wrong from a technical point of view as both functions are different, I think a plaintiff who actually manages to persuade the court that both functions are similar, would indeed have a fair chance based upon the ill-fated & OGH whirlpool.at decision (4 Ob 131/05a). This decision might have even been backed up by also quite restrictive justizwache.at decision. These decisions are however in sharp contrast to the recent BGH pcb- decisions (I ZR 139/07) in which the BGH has found that the “broad match” keyword option does not to infringe third party rights. So, we will see…
The earlier mentioned “court-room-rhetoric” unfortunately also led to some misunderstandings which, when subsequently being questioned, mostly turned out to be just imprecise simplifications.
Thus it got clarified upon request that the layout of Google side-ads may appear to some users to have a different style; the font used, the font size and the essential structure (title, ad-text, Display-URL) however do not differ between top and side-ads.
Furthermore it got clarified that there is usually no need for trademark owners to “litigate” against Google to get infringing ads removed. As statements from the auditorium however showed, Google might improve its “user experience” in this respect as trademark complaints are described as lengthy (minimum 4 weeks, average 6 weeks) and complicated, especially if the trademark concerned is a composite mark (combining text and graphical symbols). One aspect I was surprised to hear and which was also brought forward by the auditorium, is that -allegedly- TM-owners need to previously open an AdWords-account to be able to file a litigation.
One thing that definitely irritated me was the low level of understand of the precise functioning of e.g. keyword options and the vague terminology used by representatives of law-firms in the room (speakers excluded) who reported to be actually working in this field. Thus honestly I can only recommend trademark owners to avoid advocate fees by trying to resolve the dispute themselves first as AdWords cases (esp. in America) have shown that the costs of litigation usually exceeds the actual economic harm. (Unless your insurance company pays anyway … then go ahead and sue them anyway…)