Posts Tagged 'Rufausbeutung'

*One To Cure Them All? – Is The ECJ Using The Very Same Formula To Answer All Questions Related To Keyword Advertising?

Disclaimer: This is a 100% geeky trademark law post. Some readers might find it a bit difficult to understand… 😉

When analysing the ECJ’s most recent keyword advertising decision Portakabin I was surprised to see that the very same formula the court first used in Google France to define if the function of indicating origin got adversely affected in respect to Art 5 (1) lit. a

84: The function of indicating the origin of the mark is adversely affected if 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.

Continue reading ‘*One To Cure Them All? – Is The ECJ Using The Very Same Formula To Answer All Questions Related To Keyword Advertising?’

*Google Suggest: The Perfect Spot For Ads?

While pondering about a clear definition of the term “Keyword Advertising” I stumbled across the Google Suggest function, which is available to German and Austrian users since 1 April 2009 and I was wondering how the suggestions there are ranked. There are however clearly not ranked alphabetically or according to the number of pages correlating to the topic and the ranking does not correlate to the ranking of the subsequent search result.

When typing in the query “How to get” today on offered me following suggestions:

I decided to chose non of the suggestions but instead carry out a search based solely on the query “How to get” and I received following SERP:

As you can see on the SERP, the ranking of the suggestions does not correlate to the ranking of the websites. Thus I consulted the Google help files to learn more about the ranking and I was told that:

“If you’re signed in to your Google Account and have Web History enabled, suggestions are drawn from searches you’ve done, searches done by users all over the world, sites in our search index, and ads in our advertising network. If you’re not signed in to your Google Account, no history-based suggestions are displayed.”

I am accessing the internet from a public WiFi-network and I am not logged into my Google account so I guess the suggestions are ranked based on the previous searches from the IP-Adr of the public building I am surfing from. (The Sistrix SEO blog does offer an explanation of how the results are ranked, which I however, don’t understand.) What’s clear however is, that these suggestions DO heavily influence web traffic and have led to an steep increase in hits on sits ranked on top in the suggestions (, Bloofusion).

Change of traffic for two search terms which were previously used as synonyms

Ads within Google Suggestions:

The search results however are, one way or another, ranked by Google. Thus, although ads in Google suggestions won’t fall under the definition by Fain/Pedersen they could be seen as Paid Inclusions/Keyword Buying.

Although the webstandard-blog contemplates that ads inside the Google Suggestions would be very efficient, I am highly sceptical about that as I think that users would, following the principle of banner blindness mostly ignore it.

Suggestions by for "What is Wikip"

Legal analysis:

I think that the question of trademark use shall be judged quite similar to the use TM in ordinary Keyword Advertising. It has to be noticed however that the suggestions, realting to a query entered by the user and containing a TM, are offered in real time and in 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 be, contrary to ordinary Keyword Advertising, higher. Seeing a correlation between the ad and the user query would thus be the key for the (main) trademark function (description of origin of a good or a service) being impaired.

From an unfair competition point of view the “distracting presumptive customers” argument (“Abfangen von Kunden vor dem GeschĂ€ftslokal eines Mitbewerbers) shall not be applicable due to the early stage of the search, while 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.

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