Posts Tagged 'Google AdWords'

*ECJ Wintersteiger C-523/10: A Forum Shopping (Winter) Wonderland?

On February 16th Advocate General Pedro Cruz Villalón has published his opinion on C-523/10 Wintersteiger, a case concerning a jurisdictional matters referred by the Austria Supreme Court [OGH, 5.10.2010 17 OB 8/10s, Wintersteiger].

Just about two month later, on the 19 of April 2012, the ECJ issued its  decision on this reference for a preliminary ruling.

The court found that Google AdWords TM-disputes “may be brought before either the courts of the Member State in which the trade mark is registered or the courts of the Member State of the place of establishment of the advertiser”.

What makes the case so delicate is that Austria (place in which the TM is registered) is, in regard to Keyword Advertising cases, the most right holder friendly court in the EU [OGH, 21.06.2010, 17 Ob 3/10f, BergSpechte III], while Germany (member state of the establishment of the advertiser) is fairly liberal on this matter [BGH, 13.01. 2011, Az.: I ZR 125/07, Eis.de].

We are left to see how this decision will increase legal certainty for right holders, online advertisers and of course Google itself.

I’ve updated by little chart as well:

For a deeper analysis: IPKAT: Freedom, security and justice — or skiing with AdWords Continue reading ‘*ECJ Wintersteiger C-523/10: A Forum Shopping (Winter) Wonderland?’

*ECJ Decision in C-323/09 INTERFLORA – ‘Same, Same But A Different Trademark Function’

The INTERFLORA case is based on a (seriously lengthy) reference containing 10 questions by the England and Whales High Court (EWHC) dated to May 2009. In the light of the ECJ’s Google France decisions in March 2009 the EWHC upon request by ECJ later reduced the number of questions in its reference down to 5 in mid-2010. AG Jääskinen published his opinion  in early March 2011 and the final decision by the ECJ swiftly followed  six month later.

The disputes itself concern the display of an ad by Marks and Spencer which looked like this [para 20]:

Continue reading ‘*ECJ Decision in C-323/09 INTERFLORA – ‘Same, Same But A Different Trademark Function’’

*AG’s Opinion in C-323/09 Interflora – Brief Analysis

Advocate General (AG) Jääskinen delivered his opinion on the 24th of March on the 7th ECJ Keyword Advertising case: C-323/09 Interflora Inc Interflora British Unit v Marks & Spencer plc Flowers Direct Online Limited. For a short summary on the AG’s main points please see the IPKats (in English) or the Links&Law website  (in German).

Other than reported in some newspapers the author can’t see a big ‘win‘ for TM owners as the AG repeatedly stresses the general admissibility of keyword advertising [par 45, 45] and the need to promote competition and well informed users [par 99].

  • The AG highlights that there is a special ‘secondary meaning‘ in regard to the trademark INTERFLORA (due to its franchise system [par 46 – 48]) while at the same time, the trademark itself is exceptionally distinctive or even unique [par 72].  Thus even if the court established an infringement based on Art 5 (1) TMD, the ratio of this decision will be difficult to expand onto other keyword advertising decisions.
  • Concerning the protection granted by Art 5(2) TMD the court elaborates on the preconditions of a mental link between trade mark and the keyword [par 65 ss]. The AG’s opinion is, that this precondition is fulfilled “in the rather exceptional case of the INTERFLORA trade mark” [par 72]. Although the AG finds the precondition of a mental link to be fulfilled in this special case, he later states that the M&S ad did not lead to ‘blurring‘ [par 91], ‘tarnishment‘ [par 92] or might be seen as unfair ‘free riding‘ [par 105]. As a consequence the AG didn’t see any infringement under Art 5 (2) TMD.

Continue reading ‘*AG’s Opinion in C-323/09 Interflora – Brief Analysis’

*’Belle Literie’ – French Court Finds AdWords Not To Infringe TM-Rights & Acting As A ‘Neutral’ (Hosting) Provider

On the 19th of November the Paris Civil Court of Second instance found that Google AdWords in Google France v Syndicat français de la literie has not infringed TM-rights and was furthermore as a (hosting) provider exempted from liability.This comes as a big surprise, taking into account the traditionally very trademark-owner approach of French courts. This case is however NOT ONE OF THE CASE which was REFERRED TO THE ECJ.

Questions remaining after Google France:
When discussing the issue AdWords and liability there are three aspects that need to be addressed separately:

  • The liability of Google AdWords for (direct) trademark infringement is the first issue. However this issue was one of the very few things the ECJ in Google really made clear in it’s Google France decision. In the view of the ECJ Google does not infringe third party TM as Google doesn’t use the TM in the course of trade (para 55). Thus, following the ECJ’s Google France decisions it will be very hard to a court to rule that Google infringed third party TM rights.
  • The second issue is  the liability of  individual advertisers for trademark infringements. The ECJ’s answer to this question was very vague and is currently the most important question in regards to keyword advertising.
  • The third issue concerns the indirect liability of Google as it a (hosting) provider, allowing advertisers to book keywords and to draft the text of ads. The ECJ was again very vague when it came to answering this question, and left practitioners, lawyers and judges with the smart formula that Google might only be exempted from liability for the TM-infringements of its clients if Google remained ‘neutral‘. Needless to say that the ECJ didn’t really specify what it meant by ‘neutral‘.

This is the background against which the most recent post-Google-France decision on Google France was delivered in the case “Google France / Syndicat français de la literie” by the Cour d’appel de Paris on the 19th of November 2010. Continue reading ‘*’Belle Literie’ – French Court Finds AdWords Not To Infringe TM-Rights & Acting As A ‘Neutral’ (Hosting) Provider’

*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?’

*Liberalisation of Google AdWords Trademark Policy: A Self Confident Leap Forward

As reported by the Inside Google AdWords blog and Search Engine Land, Google will conduct a mayor overhaul of its TM policy.

*Firstly it will generally allow its advertisers in the US, Canada the UK and Ireland to use third party TM in the text of their ads.

*Secondly it will allow the booking of trademarks in some European countries (including Austria, Germany , the Netherlands and France!) in which TM owners can currently object against the use of their TM. Users in these countries will in the future only be able to object against the use of their TM in the text of the ad.

Google will therefore change its AdWords Trademark Policy on the 14th of September. Google AdWords policy defines under which circumstances TM owners can file a trademark complaint against the use of their trademark as a keyword or in the text of a third party ad.

Please also take a look at the chart below (click to enlarge) and at the end of the post which might help you to understand the subject. There is also a Summary of Changes paragraph at the end of this post…

Continue reading ‘*Liberalisation of Google AdWords Trademark Policy: A Self Confident Leap Forward’

*Playing Around With The Report Function Of Google AdWords

The fact that a friend of mine has give me the chance to use the AdWords account of his CrispyCard.com-service (for more information please see the end of this post) enables me to dig a bit deeper into AdWords. The issues I’ve come across are for sure no rocket science, but maybe quite interesting for people interested in Google AdWords.


About two weeks ago I mentioned Google AdWords’ new Search Query Report which allows advertisers who use the “broad match” keyword option to check in detail which search queries have effectively triggered their ad and resulted in clicks on the ad. The Search Query Report function itself is not a standard function but has to be set up first by the advertiser.

Continue reading ‘*Playing Around With The Report Function Of Google AdWords’

*Some Questions To Think About Before Reading The ECJ’s Judegement of Google v. Louis Vuitton

It does feel a bit like Christmas. Although the blogosphere seems to continue hibernating the increase in searches for the upcoming ECJ decision leaves little rooms for doubt that we all are quite excited about the decision expect for around 08:30 Vienna time. From previous publications of the ECJ I know that the press is usually informed first which means that we are deemed to wait until the document will be released at around noon.

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If you can’t wait (Impatient You!) feel free to click on this link >>here<< to check the Curia website.

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But before we all freak out and try to speed read through the decision, trying to be the first blog indexed by Google to contain a summary of the judgement I’d like you to step back on last time and to think about which questions the upcoming decision might answer.

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Do we really think the ECJ will answer all our questions? I don’t think you. There are just too many right now to be decided:


– Shall be see the keyword advertising process as one single process, or will the ECJ follow Maduro’s concept of splitting it into a “booking” (no sale of goods) and a “displaying” (no likeliness of confusion) steps?

– Will the ECJ decide on the liability of Adwords alone or will it decide about “both sides of the coin“.

– Will the court also consider the much litigated “Keyword Suggestion Tool“?

– Will the court eventually come up with something like a duty for Google to check if the term the advertiser is about to book has been registered in the respective target area. If yes, shall Google also check if the Nizza classes of the products and services of the advertiser and the TM-holders are the same. (The second sentence is a joke).

– Will the follow the arguments of the GA concerning the fact that web users do have the capability to differentiate between an ad and the website of the trademark holder or a licensee?

– Will the court eventually consider the display of search results and ads in detail, establishing kind of guidelines concerning the placement etc (or Google’s design change in 2007, changing the background colour or Top-Ads)?

– Will the court also try to close all the litigation loopholes in national law (telling the courts to stop applying their national civil law, criminal law or law of unfair competition onto keyword advertising cases)?

– Will the court follow the French terminology or will it follow the GA’s terminology, describing ads as “ads” (above or besides the search results), the organic search results as “search results” and ads which are shown inside the list of search results as “paid placement” or “Keyword Buying“?

– Will the court follow the suggestion of national courts to establish the protection for the advertising and the communication-function of famous trade marks?

– Will the court consider the different levels of protection for trade mark holders in Europe? Will French, German and Austrian trade mark holder can still oppose against the sale of their TM as a keyword, English TM-holders can’t.

– Will the ECJ finally deliver a feasible and reasonably easy to understand definition of the term “trademark use”?

– Will the ECJ find Google’s search engine service to be covered by the provider liability exception? If yes, what about AdWords and the fact that Google is one of the few search engines now (already) displaying ads on their query page?

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Before closing my laptop now two more things: I am looking forward to attend the IPKat’ Google AdWords Rapid Response Seminar seminar and I’d like to point your attention to a French podcast by Frédéric Glaize, Bertrand Pautrot, Gilles Ringeisen and Cédric Manara, that will be published (aired) shortly some time soon after the publication of the ECJ’s decision…

*Wein&Co – Courts Got Interpretations of a Technical Term Mixed Up

The Austrian OGH got two different interpretations/meanings of a technical term mixed up in its Wein&Co decision, thus its decision is not conclusive. As a consequence, Austrian and German authors (Noha and Baars/Troge) have argued that the OGH might actually have generally misunderstood the nature of Keyword Advertising, as the OGH at some point argues that Google displays ads within it’s (organic) search results (= Paid Placement).

I partly disagree as I argue that the court got the basics right and that the basic ratio of the decision is not utterly mistaken, but that the court at some point confused the two terms “Trefferliste” (List of Hits) and “Suchergebnis” ([organic] Search Results) and thus has delivered a partially inconclusive decision. For further observations about other possible (visually misleading) influences onto the court please refer to my previous post.

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The broad interpretation of the term “Trefferliste“:

In its Wein&Co (OGH, 20.03.2007, 17Ob 1/07g) decision the Austrian Supreme Court basically relied on the terminology and its interpretation as used by the lower instances:[0]

Suchergebnis” = (organic) Search Results: These are the results provided by Google. The court of first instance describes the whole Ranking Process quite well (p.7 et seq).

Trefferliste” = List of Hits (broad meaning): This term describes the left side of a SERP (Search Engine Results Page), which consists not only of the search engine’s (organic) Search Results, but also includes Top-Ads (Ads on the top-left side, displayed against a (pre April 2007) light blue background, bearing a sign, marking the light blue section as being a “Anzeige” (sponsored Link)). The OGH uses this (broad) interpretation in the beginning of its decision, but notes however that the labelling of the ads by Google is “more or less” clear.[1]

Trefferliste: broad meaning (3.1)

In 3.5 the court stated that the reference to the site of the defendant (Ad) was displayed on top of the reference to the website of the plaintiff inside the List of Hits (“Trefferliste”). (broad meaning)

Trefferliste: broad meaning (3.5)

Graphically summarized:


The alternative/narrow interpretation of the term “Trefferliste“:

Things however got complicated when the OGH returned to its earlier understanding of  the term List of Hits as a synonym for the much narrower term (organic) Search Results. The OGH itself has repetitively used the narrow interpretation in e.g. its Numtec-Interstahl and its Glucochondrin descision. Please see below that the OGH has put the word “Trefferliste” in brackets behind the word “Suchergebnisse” which I see as an indication that the OGH, as opposed to the lower courts, sees the List of Hits to be the same as the (organic) Search Results (narrow interpretation). The lower courts in Wein&co had mostly used the broad interpretation.[2]

Trefferliste: narrow meaning

In 3.4 the court also states that the AdWord was displayed immediately above the List of Hits (“Trefferliste”). As there are usually no further ads or banners above the Top-Ads, I take this as another indication that the court saw the List of Hits to be the same as the (organic) Search Results.

Trefferliste: narrow meaning (3.4)

Graphically summarized:


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Conclusion:

The court used two significantly different interpretations of the term List of Hits (“Trefferliste”) within one decision:

-Once in a broad meaning to include also Ads shown above the (organic) search resuts: (e.g. 3.5) , and

-once in a narrow meaning, just comprising the (organic) Search Results (e.g. 3.4)

The court used the broad interpretation to be able to include Top-Ads into the List of Hits. The court subsequently however applied the narrow interpretation in relation to the question of the likeliness of confusion and thus saw/treated Top-Ads to be a part of the (organic) Search Results.[!] I agree with the court that users expect to see search results inside the (organic) search results which have been ranked in accordance with fair and relatively unbiased algorithms. Thus, the display of ads inside the (organic) Search Results would increase the likeliness of confusion. However, the way with which the court expressed itself in the decision incorrectly suggests that Google engages in Keyword Buying (= Paid Placement = selling ad space within its search results).

The source of all this confusion obviously lies in the different ways the plaintiff and the defendant used the term “Trefferliste“. While the plaintiff, represented by Dorda Brugger Jordis, used the broad interpretation to back up its (Paid Placement) claim, the defendant, represented by Ferner Hornung & Partner, used the narrow interpretation to back up their claim (please compare p. 2 last paragraph, first sentence and page 5, second praragraph, last sentence of the HG’s decision).

The court in Wein&Co however, as opposed to the lower instances, apparently got the terms List of Hits and (organic) Search Results mixed up and thus reached a result which is partly not coherent.

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[0] The decisions of the lower courts in the “Wein&Co” case can be downloaded as PDFs by clicking onto the respective link. HG Wien_34Cg 70/05h_27.12.2005; OLG Wien_2R 28/06m, 27.07.2006.

[1] [The court of first instance (HG Wien) used mainly used the more precise term “Suchergebnisse” but also the terms: “Ergebnisliste” (p.10) and “Trefferleiste“[sic!] (p.26) in both interpretations (narrow p.5, broad p. 10); The court of second instance (OLG Wien) was far less clear and used the phrase  “bei den Trefferlisten” which could be translated as “next to the List of Hits“. However, also the court of second instance saw the ads to be above or beside the (organic) search results thus used the broad interpretation.

[2] The German BGH however, also applied the “narrow interpretation of the term “Trefferliste” in his Bananabay-decision. The Austrian OGh however, used the term “Trefferliste” in its Bergspechte decision in the narrow meaning again. In the text of the reference the court referred not only to the term “Trefferliste” but also circumvented the issue by speaking more vaguely abut  “ads […] displayed on the screen“.


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