In its Google France decision the ECJ ruled that the question of whether the function of indicating origin is adversely affected or not particularly depends on the manner in which the ad is presented. The Court furthermore stated that the function of indicating origin may be adversely affected if the ad is so vague that a normally informed and reasonably attentive internet user is not able to ascertain whether the goods or services advertised originate from the trademark owner, an undertaking that is economically connected to it, to the contrary, from a third party. The same of course is true if the ad suggests an economic connection.
In its Bergspechte case the Austrian OGH will have to decide whether the ad shown below fulfils these requirements. The ad (please see below) was shown in response to searches for “Bergspechte“.
So to shorten the waiting time until the judgement, please feel free to decide yourself and give it an “educated guess“. I’d furthermore appreciate it if your leave a comment explaining why you decided the way you did.
Rough translation by the author:
“Ethiopia per bike trip of a lifetime through the north with lots of culture. Sixteen days from 20.10. http://www.trekking.at”
Note: the ad shown is not necessarily identical with the original ad as the ad described in the courts file contains too many characters [sic!] to be shown as a Google ad.