Posts Tagged 'WEin&Co'

*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“.

*Surprisingly Clear Words: Noha on Keyword Advertising

Ever since I’ve started working on the topic of Keyword Advertising, the Wein&Co decision has always remained a mystery to me as the Austrian Supreme Court (OGH) stated in it, that Top-Ads (ads above the search results, displayed on a light blue or yellowish background) should be seen/treated as being a part of the search results. This would imply that the OGH alleges Google of paid placement = selling ad space within its search results.

In a earlier post I was already wondering to what extent the court might have been influenced by screenshots handed in by the plaintiff. Sadly enough the OGH has upheld and repeated its highly disputable view also in its quite recent Bergspechte reference.

I have always disagreed with the OGH on this certain issue and thus I was very -pleasantly- surprised to find a quite clear & explicit statement in an article by Birgit Noha [1] referencing to Baars/Troge [2], stating that:


“These arguments by the OGH give room to doubt whether the court has actually understood the setting of Keyword Advertising. One might suspect that the OGH got the principles of trademark law and the principle of diversion [betweens ads and content] mixed up[2].”
(Roughly translated by autrotrabant)

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There is nothing left for me to add 😉


[1] Noha, Neue spezifische Formen der Internetwerbung – Keyword Advertising im weiteren Sinn und rechtliche Grenzen, in Feiler (Hrsg), Innovation und internationale Rechtspraxis (2009), 589-602 (594).
[2] Baars/Troge, GRUR Int 2008, 526-531 (530).

*Records Give a Hint as to Why the Austrian Supreme Court in Wein&Co Might Have Found Top-Ads to Be a Part of the (Organic) Search Result

When accessing the records of the Austrian Wein&Co (17Ob1/07g) decision and finding a black/white screenshot I was surprised to see how much the layout and the colours of the Google Search Engine Results Page have changed.

Ever since I’ve started working on this topic I had huge difficulties understanding why the Austrian Supreme Court judged that Top-Ads, displayed above the (organic) search results, should be treated as if they were a part of the search results. The court in this way was (implicitly) suggesting that Google engaged in paid placement (Paid Placement = Keyword Buying)… In the course of my PhD, I requested that the lower instances (the HG Wien as well as the OLG Wien) supply me with anonymised copies of their decisions. Something that truly surprised me was a screenshot of the incremented ad in 2005 which was attached to the HG decision:

Annex .I of 34 Cg 70/05h

The (in 2005  still: light blue) colouring of the Top-Ad (which the Austrian Supreme Court has also expressively mentioned in its decision as acting as “highlighting”) was in the HG version simply not visible (anymore). It would be interesting to know if the court was originally supplied with a copy that was of higher quality and in colour. However as Google just changed the background of its ads from light blue to yellowish in April 2007 the judges might still have seen the original colour.

Just looking at the screenshot, would you have immediately identified the Top-Ad as an ad? I didn’t! (although I am not, not even implicitly, saying that the OGH based his decision on these screenshots alone!)

Enlarged view of the upper left corner of Annex .I of 34 Cg 70/05h

Just to assist your memory in trying to remember what the Google SERP looked like 2 years ago:

Colour sample of a Google SERP before 04/2007

Furthermore, it might be worth mentioning that the first screenshot must have been taken on quite a small (presumably) laptop screen with low resolution and relatively big letters which caused the layout to squeeze together and made the screen look crammed (thus increasing likeliness of confusion?).

The second screenshot in the ANNEX, concerning a (Side-) Ad that was not found to be infringing by the OGH, was taken on a much larger screen, thus the letters appear much smaller and the whole site looks far less crammed and clearer.

A pure and nothing but a pure coincidence I reckon. 😉

Annex .II of 34 Cg 70/05h


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