Posts Tagged 'Augmented Reality'

*Augmented Reality: Are The Doctrines Developed for Search Engines Applicable?

Regular readers of this blog will know that I have already written a few posts [and even smuggled into the footnotes of a recent German publication (fn 17) & our upcoming JIPLP publication (fn 25)] on the idea of applying the nice principles that were developed in recent years for keyword advertising onto the technique “Augmented Reality“.

[If you are not familiar with the term “Augmented Reality“, please take a second to watch this video, which will provide you with a very simple introduction to the topic. At the end of the post you will find additional videos which might give you a few ideas how far technology has already come.]

Why? Because I don’t think it makes a huge difference whether I type “Canon S 90 price comparison” into the search engine (e.g. Google Product Search) on my desktop computer at work or whether I just point my mobile phone’s camera onto an actual Canon S 90 while standing in the shop and then wait for the information supplied by an augmented reality application.

This issue has been mulling around for quite some time in my head and now I think it is time to approach it in a more analytical way, by scrutinizing my assumptions.

Questions raised:

  • Can the same principles that were developed by search engines also be applied to Augmented Reality services?
    • Can the act of pointing a mobile device towards an object be compared to the submission of a query?
    • Are the rules developed for the liability of search engines providers also applicable for the providers of augmented reality services (infringing TM use, third party liability)?
    • Can the act of linking commercial communications to an object be compared to the booking of a keyword?
    • Can the act of linking a branded (trademarked) object to a commercial communication be compared to the booking of a trademark term as a keyword?

If the answers to all of the questions above are in the affirmative:

    • Does ‘commercial communication‘ on such services pursuant to Art 6 (a) of the E-Commerce Directive (2000/31/EC) need to be labelled as such (opposed to ( non-commcercial) ‘user generated data’, such as Wikipedia or Google’s (organic) search results)?
    • If there is a labelling of commercial communications, is it sufficient to distinguish commercial from non-commercial communication?
    • Trademark Law:

      • Is there a use for goods and services in the meaning of Art 5 of the Trademark Directive (89/104/EEC)?
      • Is it possible that users might assume an economical connection between the ad displayed and the trademark proprietor? [Verletzung der Herkunftsfunktion]
      • How to avoid such an assumption of an economical connection on the part of the consumer (and thus not to affect the function of indicating origin)?
    • Law of Unfair Competition:

      • Are users deceived about the nature of the content? Is the ad misleading?  [Irreführung, Rechtsbruch]
      • Is there an act of passing off? [Rufausbeutung]
      • Does the use lead to dilution of the trademark or is it detrimental [Verwässerung]
      • Is this service intercepting a competitor’s potential customers? [Eindringen in den Kundenkreis des Mitbewerbers]


  • Where does the information used in the service come from?
  • Who shall be held liable if the data displayed is incorrect?
  • Who could possibly guarantee the quality of the (augmented) information display?

For your viewing pleasure:

Finally, my personal favourite:

I’d be happy to hear your thoughts on this issue and would be very grateful for screenshots of AR services where commercial communication (ads) is included in the service without (clear) labelling.

PS: Thank you Peter for pointing out the post by Adam Smith of the World Trademark Review to me.

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