Archive for the 'Online Advertising' Category

*Google Slightly Changes Layout of Top-Ads – Further Blurring The Line Between Ads and Search Results?

Google announced on the 3rd of February that Top-Ads (these are the ads shown above the -organic- search results and placed on a coloured background) will be shown in a slightly different style in the future.

Ads on Google  are shown in a layout that is different from the layout of the (organic) search results. The different layouts thus might help users can (more easily) distinguish between them. The more similar the layout of ads are to the layout of search results, the more difficult it is for a user to correctly differentiate between the two.

Legal aspects:
From a legal point of view the differentiation between ads and search results is not only important from the point of the obligation to label commercial communication as such but also from a law of unfair competition point of view. As proven in the past by numerous ‘AdWords’-cases there also exists a trademark law aspect of this issue. Continue reading ‘*Google Slightly Changes Layout of Top-Ads – Further Blurring The Line Between Ads and Search Results?’

*’Instant Preview’ – One More ‘Instant’ Function On Google

About a month ago Google launched the ‘Instant Google‘ feature which rendered the ‘Search’-button kind of obsolete. While the ‘Instant Google’ feature might be highly interesting from an unfair competition law point of view (results are being shown already while the user is searching and thus users may be especially vulnerable for distractions etc.) the implications of the new ‘Instant Preview‘-feature onto currently ongoing TM-disputes should be considered.

The ‘Instant Previews’-feature enables users to see -after clicking on the magnifying glass besides the title of the search result- a preview (Google calls it a ‘image based snapshot‘) of the search result whilst remaining on the SERP (Search Engine Result Page). There is a also YouTube-Video available in the respective Google blog post.


Continue reading ‘*’Instant Preview’ – One More ‘Instant’ Function On Google’

Vanity Post: Madras High Court Mentions Austrotrabant’s Blog In Google AdWords Decision

Cederic Manara a French author was so kind to pointed out that a small excerpt of this blog got mentioned in a side-note of an Madras High Court decision on Google AdWords. (For a description of the case please see the SPIC IP blog ) The post concerned is a post written as a response/summary of the IPKat’s Google AdWords Rapid Response Seminar this March.

“[ Note: In an opinion titled “From Biblical Questions to Delphian Confusion: ECJ’s decision on Google France C-236/08”, posted in Austrotrabant’s blog, the decision of the European Court of Justice was criticised as one where the Biblical statement “‘Seek and you shall find’ found it’s end in a judgment which is as confusing as a statement of the Oracle in Delphi.]”

Not having had time yet to read the whole decision (36.000 words = 50 pages of text ) it seems to concern the use of a third party trademarks not only as a keyword to trigger ads for  ‘online matrimonial service’ but also the use in the text of the ad. Furthermore also AdWords Trademark Policy seems to be of importance in this case, in which Google itself was the defendant.

Talking about the length of the decision Prashant Reddy has put it this way:

To put it mildly, Justice V. Ramasubramanian’s judgment is the Encylcopedia of all the internet related trademark litigation that has taken place in every major jurisdiction on this planet.

Readers interested in the subject are however advised also to check out the next issue of the Journal of Intellectual Property Law and Practice (JIPLP) which will most likely contain an article in English by Stephan Ott and myself discussing in quite some detail the ECJ’s Google France as well as the subsequent BergSpechte decision: ‘It’s the Ad text, stupid’  – Cryptic Answers by the ECJ won’t Help to establish Legal Certainty for Online Advertisers.

*WIPO Paper Reviews European Case Law On Internet Trademark Issues

WIPO published a 62 pages long paper at the beginning of this month which reviews (or ‘demystified’ as Jeremy has put it) the European case law on Internet trademark issues.

I just briefly scanned through it and the Keyword-Advertising part starts at page 5 of ANNEX 1 (actually page 9 of the .pdf document). The paper is quite up-to-date, as it already includes a short analysis of the ECJ’s Portakabin decision. The paper, due to its brevity,  doesn’t deal in great detail with the underlying legal challenges but might for sure be a perfect starting point for someone trying to get an overlook. (clear and correct terminology used!)

The paper furthermore analyses Keywords Advertising cases in e.g. China, Israel and Argentina and also covers the topics of  Liability of Internet Auction Sites for Trademark Infringement (ANNEX 1, page 1) as well as Trademark Infringement in Virtual Worlds and Social Media (ANNEX 1, page 12).


Continue reading ‘*WIPO Paper Reviews European Case Law On Internet Trademark Issues’

*Recap: Deep Search II Conference, Vienna, 28.05.2010

Unfortunately I could only attend the afternoon sessions of the Deep Search II Conference, which turned out to be a real shame as most of the presentations were outstanding.

As I am sure that he organizers will provide a transcript etc. I will just try to communicate the look&feel of this conference. Thus the content below doesn’t really have a structure but mostly resembles the ideas I scribbled into my notepad while listening. As the statements  just express my personal opinion and I do not intend to offend or to make anybody feel depressed.


Elizabeth von Couvering held a brilliant presentation about Search Engine Bias and the Public Interest in which she explained that the ranking of search engines is usually driven by the expectation of the users and thus search engine results are always somewhat biased. She then went on to the issue of an informed citizenship as a kind of pre-requirement for democracy and later in the discussion stressed that maybe also the market itself should establish (self binding) rules and ethic standards  to guarantee neutrality (or less bias, depends…). After an extremely well done (looks like I will have to rewrite the respective chapter in my dissertation) historical overview (please see the draft chapter of her thesis) on search engines and their business models she closed with the remarks that the the issue of search engines is not about information retrieval, but it’s about sales (of advertisement) and urged a discussion on the role of the public in this respect.

One aspect I’d also like to highlight is that von Couvering also indicated (and later confirmed upon my request) that the quality of search engines (or the size of the index) correlated with the expected advertising revenues. Thus if courts restrict their abilities to create advertising revenues (“not worth while“) this would (taking into account all the costs SE have to run their business) effectively have a negative effect on the quality of search results.

All in all I’d like to agree with von Couvering but as I am convinced that people just ain’t no good I wonder if self-binding ethical standards are able to improve the whole situation. Unfortunately at the same time I don’t think laws will do either… (I know this is a depressing thought, but what about this ‘Code‘ that is supposed to solve all the problems of the web?)


Matteo Pasquinelli spoke about the Surplus and the Immaterial: Political Notes on the ‘Industrial Revolution of Data’ and referred for most of his presentation to an article from the Economist. I think I didn’t really get the point of his presentation. I agree with the assumption that the mass of data created is steadily increasing and that it eventually might exceed the storage and computing capabilities. Pasquinelli however ended up kind of referring to the big service providers (Google, Facebook, etc. ) as “capitalists” (or “the new landlords“) who allow indigent users to use (live inside) their services. In return for the right to use these services the users generate data/information/content which the landlord later owns for his own good.

Although I have to admit that the idea is very interesting I think Pasquinelli effectively failed to explain his theory in a bit more detail or to consider the fact that users are not (yet) dependent on these services but use them to creates extra joy in their lives and that thus the comparison with the poor worker (who is forced to live in the landlord’s house as a shelter) is a bit far-fetched and thus not fully convincing.


dr mc schraefel gave a stunning talk about Building Knowledge: What’s Beyond Keyword Search? and even being aware of the arrogant tone of this statement, I have to admit that her presentation was the first in quite some time that left me speechless as not only the content of her presentation was anything but brilliant but at the same time her slides were clear, appealing and I’d almost go as far as saying that they had an artistic touch… (I reckon pretty much everything done on a Mac looks great, right? If you’re curious by now, you can find most of the ideas of her presentation also on her blog.)

Her (jumpy, active and highly enthusiastic) presenting style pretty much reminded me of Burkard Schafer who used this style to teach (or at least tried to teach) his sleep deprived master students some basic principles of AI.

Trying to sum up all the aspects Schraefel mentioned (apart from the geek health tips, see the picture above) one point was that data wants and should be free as only free data will enable serendipity (unexpected) discoveries. Another point that caught my attention was the remark that in the future everything will be visible an that it makes no sense drafting laws to prevent this inevitably things from happening but instead the relevant institutions should focus on modifying existing or creating new norms that will penalize the abuse of data.


Dr. Karl H. Müller in his remarkable talk (From a Tiny Island of Survey Data to the Ocean of Transactional Data) critically questioned the quality of survey data and graphical representations thereof.

Although everybody in the room, already before his talk, would have agreed with the statement that none should believe any study he/she hasn’t falsified him/herself, Müller provided the audience with alerting examples on how questionable the quality of survey data can be. E.g. he provided an example where a question about the personal general life-happiness of the survey participant accidentally got used twice in a questionnaire and surprisingly led to the result that the person’s perception of her/his general happiness significantly changed within twenty minutes.

Finally there are three remarks I’d like to make:

1: Great location. I had already passed the Hotel Imperial Riding School Vienna in Vienna a couple of time but I’ve never found my way in. So everybody expecting geeky IT-researchers conspiring in nerdy computer lab facilities would be baffled finding the conference to take place in the luxurious halls of the hotel. Not to mention the buffet…

2: As Austria is still a dreadfully conservative country the usual ration of men v women is usually 3 men for one woman when it comes to IT (law). Thus I was pleasantly surprised to see that the majority of the audience were actually females. 🙂

3: IT-jurists, as all jurists I suppose, are kind of walking one-man-companies thus jurists are usually extremely reluctant to clearly state in the course of an academic discussion that the are of a different opinion as this at them same time would mean criticism in their colleague’s skills and far worse their business. Thus the average excitement level of an IT-law discussion in Austria is usually doomed to be as high and breathtaking as speeches at UN-conferences. Not so however at the Deep Search 2 conference.

Once the discussion had gained some speed it actually got quite exciting and it was great to see that the people sitting there were not sitting there just to make the name of their law firm appear on the agenda but because they had very profound knowledge about their subject and maybe even more important, they were truly passionate about it. (Yes, I know…)

One aspect that might have even increased this impression was the fact that during the discussion some of the panelists were  still wearing their head microphones which boosted their “quiet silent sighs” clearly audible into the room.  😉

*Selling Your Privacy For… ‘Whatever, As Long As It’s For Free’

Jokes/satire usually also contain a small grain of truth. Same is true for the clip by the Onion Network (below). The clip perfectly highlights the phenomenon of selling one’s privacy (e.g.  consuming free internet access in exchange for georeferenced user data which is most precious for advertiser) and it is interesting to see speculations by the makers of the clip how far users might actually go in return for free services.

For all of you who think that the whole clip is ridiculous I recommend to check out the ‘free’ service Peter Pays which enables users t make long distance calls for free in exchange for watching ads while being on the phone. The basic idea of the video however combines that idea which tailored ads. Enough words. Enjoy!

The Onion Network: New Google Phone Service Whispers Targeted Ads Directly Into Users' Ears. Click onto the image to watch the clip.

PS: One could also go on at this point about the separation between ads and content, but no… it’s a weekend post.

*Google Streetview: Being Yelled At For Being ‘Perfectly Honest’?

Flipping through the German blogosphere yesterday I came across a rather specialist IT-website which explained in length and at great detail why it is actually impossible to register the location on wireless networks  (WiFi, WLAN) without at the same also monitoring some of the user information (parts of emails, or websites etc: ‘payload‘) transmitted. The post by Kristian Köhntopp referred to the standard used for Wireless Networks (IEEE Std 802.11) and (I hope I got that right) explained that due to the nature of wireless networks there are different types of information packages (frames) transmitted simultaneously. While some of these frames contain information about the wireless network itself (beacon), others contain the actual information (payload). The beacon frames, however, are the ones relevant for Google as they contain the MAC address and the ID of the network.

When trying to scan for wireless networks in a city one is however facing not one separate wireless network in the middle of nowhere, emitting and receiving in a steady and continuous stream between two points using a distinct frequency, but a multitude of sources (some might only be interferences) wildly broadcasting on the same frequency. So what Google did was to take a sample (let’s compare it to a picture taken of a group of friends at a busy square with your camera) of all the network information that was broadcast on a certain frequency for a short span of time (0,2 sec). Staying with the example of the square, you might only have wanted to take a picture of your posing friends, but as you also wanted to enrich your holiday snapshot by adding the imposing image of Vienna’s St. Stephens Cathedral in the background, you inevitably also photographed some bystanders, who just happened to also be running around at that time (if they’re moving quickly, they aren’t Austrians 😉 )

Coming back to the wireless networks, all the Google StreetView cars did was collect the images and WiFi samples, which were later uploaded and processed by some the corporate super-computer (‘the mothership‘). Otherwise I would have to assume there would be Google Streetview trucks driving through our cities, hosting computers which are not only capable of instantly blurring the faces of people and (some) writing of all the taken pictures, but also a bunch of college students overseeing this process and immediately deleting information by hand if the computers had missed something. So, I think we are safe to assume that all the data collected by the cars on the street is later processed by Google. But as explained above, before this can be done, the unmodified data (thus unaltered samples) first have to be collected and uploaded. And only this process turns the raw bundles of data collected into a valuable source of information. That’s also what another company, Skyhook, has also already been doing for some time (which claims only to record the ‘ “Here I am” signal ‘.

Why? Because knowing the exact location of wireless networks (as well as of other sources such as GSM-towers etc.) helps to improve the precision of mobile devices. Currently most handheld devices rely on GPS data, which is good, but not overly accurate and sometimes not available. The wireless network of a small coffee shop however is perfectly suited to inform a handheld device about its position, as the signal of the wireless network cannot only be perfectly attributed to a certain location, but can also still be received right in the middle of a multi-storey shopping centre which, due to its steel and concrete construction, is perfectly shielded from any GPS signals.

And, as this a blog about advertising, you will not be surprised at this point to hear that this information is valuable not only for the owner of the hand-held device, who will be pleased to be able to be able to find himself on the map of the shopping centre, but also for advertisers as it enables users to be exposed to the advertising  of a company (ad about discounts in a shop) right before the customers has reached its shop window.

So… my dear German friends, Google is not scanning your mail (they could do that much easier by just taking a look at the emails you or your best friend are storing on their Google Mail servers), neither are they interested in which clips you are currently watching on YouTube. It’s all about advertising and advertising revenues; not about user information.

You might add now that a Google is not your friend and thus you don’t want to be photographed by Google anyway. That might be true, however as soon as an individual (at least in Austria) steps out of his flat/house he can’t object to (unintentionally) becoming a part of the picture taken of his street. And, returning to Google Streetview, you won’t be surprised to hear that Dennis Schultz at an event (Security 09) held in Vienna last year explicitly said that it required Google quite some effort to blur faces and writings on all the images, as people on the images actually only disturbed the pictures. We therefore conclude that Google is more interested in the colour and the shape of the post box on the wall of a house than in the person standing in front of it.

If my thoughts weren’t too cryptic you should at this point ask yourself; ‘but haven’t they already admitted that they’ve made a mistake by using this piece of code which…?‘ Yes, I think it was a mistake that Google has not deleted the ‘unwanted side-product‘ which they had previously harvested while taking samples. But on the other hand the fact that Google did admit this just shows in my eyes that they have really investigated in great detail all the required issues in the catalogue of questions by German data protection authorities and secondly that they, and this indeed impresses me personally, were honest enough (had the guts) to openly fully admit to a mistake which maybe nobody would have discovered or which at least nobody would have been able to prove.

*Google Suggest: Sex, Stereotypes And A Lot Of User Confusion

I have already reported about Google Suggest from a trademark / law of unfair competition point of view. Ott and Goldberg recently reported about a case where a woman tries to sue Google, as the search engine suggested, when typing in the name of the claimant (Beverly Stayart“), “Beverly Stayart Levitra“. Levitra” however is the name of a drug fighting Erectile Dysfunction (Stayart v. Google, Inc., 2:10-cv-00336-LA (E.D. Wis. complaint filed April 20, 2010).

What makes this case even more interesting (Goldberg, Ott again reported) is that the same woman already sued Yahoo (Stayart v. Yahoo! Inc., 2009 WL 2840478 (E.D. Wis. Aug. 28, 2009) after the search engine presented users, searching for “Beverly Stayart”, results that also lead to porn websites. The claimant thus argued that this would establish kind of a connection of her person to these websites. The court however found that there was no chance that users could however assume such a connection as: “No one who accessed these links could resonably conclude that Bev Stayart endorsed the products at issue.”

Obviously not encouraged by this loss, Ms Stayart sued again, this time Google. As Google suggests the name of sex-performance-enhancing drug, in addition to her name she sees here rights violated and similar grounds as in the previous case. Presumably the case will face a similar outcome.


As SearchEngineLand has reported, Google recently  disabled a number of search suggestions. Thus suggestions for queries as “muslims are” (“xyz are“) are no longer shown. Interestingly enough for the query “islam is” (“xyz is“) a number of suggestions are shown. The suggestions shown for this query are however mostly negative/offensive.


A Google Support page explains how the Suggestion Function actually works:

“As you type, Google Suggest returns search queries based on other users’ search activities. These searches are algorithmically determined based on a number of purely objective factors (including popularity of search terms) without human intervention. All of the queries shown in Suggest have been typed previously by other Google users. The Suggest dataset is updated frequently to offer fresh and rising search queries.”

So, in case I understood that right, the suggestions are based on previous searches, or let’s say on information previously submitted by other users. This made me wonder if different Google versions would display different suggestions. Thus  I took the phrase: ‘Germans are‘ [“Deutsche sind“] and entered it into and subsequently into To my big surprise the suggestions did differ. Not much but they did. While the brought “deutsche sind die besten” [‘Germans are the best‘] as the 8th suggestion, had “deutsche sind arrogant” [‘Germans are arrogant‘] at the same position.


Without going into detail regarding the interesting relation between Germans and Austrians I then went on to check out Italians, Greeks, people from Poland, Christians and as a last point members of minorities as eg. homosexuals.


What was interesting to see is that the suggestions are sadly enough pretty accurate on the respective stereotypes & prejudices. I guess I shouldn’t be too surprised about this as the suggestions are nothing else then bullet-pointed search results but somehow the whole thing makes me wonder… how many people need to type “Italians are there to be kissed” into Google or how many websites have to contain the words “Beverly Stayart” and “Levitra”   before Google ads it to its suggestions. Quite a few I reckon 😉

One thing however is clear, Google Suggest, maybe just because it’s new and users are not used to it yet,  obviously contains a certain confusing element and thus Google might be well advised to explain users a bit more how this service works. In a similar case Google has  shown “Explanatory Ads” in connection with their picture search as the search term “Michelle Obama” led to a clearly racist and inappropriate image.

Explanatory Ad by Google

*Ads Inside Of Google Suggest: Trade Mark Infrigements & Acts of Unfair Competition?

The issue of ads inside of the suggestions made by Google’s Suggest Function has already been dealt with in great detail in a previous post, at the beginning of February. My conclusion back then was that:

[…] The question of trademark use in relation to ads inside of ‘Google Suggest’ shall be judged quite similar to the use TM in ordinary Keyword Advertising. It has to be noticed however that the suggestions, relating to a query entered by the user and containing a TM, are offered in real time and close proximity to the user’s query. Thus the chance that users might see a correlation between the search term entered and the ad displayed might -contrary to ordinary Keyword Advertising- be higher. Seeing a correlation between the ad and the user query would thus be the key for the (main/essential) trademark function (indication of origin) being impaired.

From an unfair competition point of view the “distracting presumptive customers” argument (“Abfangen von Kunden vor dem Geschäftslokal eines Mitbewerbers) shall not be applicable due to the early stage of the search, while however the “passing off / slipstream riding/coattail-riding” argument (schmarozerische Rufausbeutung) might be valid one as users are more likely to see a correlation between their query and the ad. […]

Back in February this was all mere speculation. Today however I stumbled across following suggestion (ad?) while searching on searching for the term “Pizza“.


As the term “Pizza” is of course not covered by any (e.g. TM, or company name) protection this fact/screenshot on its own isn’t too exciting, but I think things would indeed get very interesting if Google were to expand this service also to other (probably even protected) terms and to other countries…

*From Biblical Questions To Delphian Confusion: The ECJ’s Decision On Google France C-236/08

Seek and you shall find“. A legal dispute that began its career on the ECJ’s level with a quote from the new testament (Matthew 7:7) has – for now – found its end in a judgement which is as confusing as a statement of the oracle in Delphi might be. At this critical point the efforts of the IPKat  have to mentioned who not only organized – on very short notice – a (Google AdWords Rapid Response) seminar at Ashurst for over 100 people interested in the issue, but who also provided the audience with an excellent summary of the controversial judgement.

Dr Jeremy Phillips, Michael Edenborough, Dr Birgit Clark, Annsley Merelle Ward (from left to right)


Before digging into the difficult questions I’d like to highlight a few issues I found rather clear:

– The ECJ held that Google cannot (directly) be held liable for selling trademarks as keywords and subsequently displaying ads (triggered by the keyword=trademark).

Advertisers can be held liable on the basis of the content of their ads. The sole fact that they have booked a trademark as a keyword doesn’t amount up to a trademark infringement. National courts however have to decide if the the ad does not enable normally informed and reasonably attentive internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by the ad originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.

Thus the court has missed its chance to simply say that, except for special circumstances (e.g. acts of unfair competition), ads not bearing the TM should not be seen as violating the TM-holder’s rights and ads that do contain the TM very likely do.

– While painstakingly trying to avoid the word “confusion” the ECJ has thus ruled that also cases of Art 5 (1) lit a (sign identical or similar, goods&services identical or similar), a de facto likeliness of confusion needs to be demonstrated by the TM-owner to forbid third parties the use of their trademark. The way the ECJ did this was to say that the TM-owners rights are violated if the functions of the TM are affected. And causing a ([confusion]) of whether or not the good or service advertised stems from the TM-holder affects the function of origin of a trademark. [49, 79]

– The court also seems to be in favour of the idea of granting Google’s AdWords service the liability exception provided by Art 14 of the eCommerce Directive. However the final decision on the subject of whether Adwords is “purely technical and neutral service” again lies with the national courts.


The whole thing however gets a bit more complicated if one looks at the fact that:

– National courts have to decide whether users are able to ascertain if the goods or services originate from the trademark owner. This doesn’t sound like too difficult a task, but one has to look at the different national perspectives ranging from the ultra conservative French courts to the highly liberal German courts, who would for sure have little doubts to rule that the function of origin is usually not affected by an ad not containing the disputed TM.

– The national positions concerning the liability exception of Art 14 are similar to the question mentioned previously, except for the detail that in this case Austria is actually highly liberal, granting this exception to AdWords already since a Austrian Supreme Court decision in 2004. As the cases referred to the ECJ are however French, Michael Edenborough has put it like this:

You must bear in mind, that the court is in France, the claimant is French, the defendant is American. Where do you think this will lead?

Or in other words, does allowing the (obviously anti-Keyword Advertising) French court to decide on the liability exception mean that the exception was not meant to be granted anyway?


Issues the court definitely did not get right:

-The court seems effectively mistaken in its assumption that the (also protected) advertising function of the TM is not affected as the TM-owners website usually appears (rather high up) inside the search results anyway and thus the TM-owner still has the chance to advertise/communicate/convince potential customers.

This sounds pretty reasonable at first glance, but if you think about it a bit longer you might wonder if one can really assume that a TM-holder can actually be found by users if his/her website is not displayed on the very first page of the search results. In theory one could assume that users might keep searching for the TM-owner, but I think the reality is that most users don’t have a clue about Boolean search operators and due to the Primacy Effect it is illusory to expect users to do little more than using the scrolling wheel of their mouse to scroll down on the first results page.

Does this matter? I believe so, as in the cases at hand all of the claimants were listed on the first page of the search results. Thus, if a national court might have to issue a decision in a case where the TM-owner’s website is not shown (on the first page) in the search results, the (?French?) court might assume that his case is substantially different from the cases upon which the ECJ had to decide and is thus not bound to its ruling.

I do know the last point, which was actually brought up by Dr. Stephan Ott in the course of preparing an article on that topic, might be a highly theoretical one, but… I would certainly not be surprised to see a national court using it to justify its decision.


For more information on the cases please refer to the video stream of the Google AdWords Rapid Presponse Seminar, which was hosted by the IPKats, Eric Glodmann’s blog, Adam Smith’s article on the Blog of the World Trademark Review, a short article on,  a analysis (in German) by Dr. Stephan Ott on his Links&Law website or a short newspaper article (in German too) by Austrotrabant. A more elaborate version of this and Dr. Ott’s post will be published in the next issue of the German law Journal MarkenR; Ott/Schubert, Fremde Marken als Keywörter – Orakelsprüche des EuGH als Antwort auf biblische Fragen, MarkenR 2010, 173 (link hopefully coming soon). 

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