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Update 45: November 27, 2006

1. Person v. Google - Does Google have a monopoly over keyword targeted internet advertising?

Person, a 70-year-old attorney and businessperson who lives in New York and is running for Attorney General in the November 2006 election, has sued Google in the U.S. District Court - Southern District of New York. The complaint charges Google with monopolization or attempted monopolization, along with a conspiracy to monopolize under Section 2 of the Sherman Act (15 U.S.C. §2). In his opinion, Google has a monopoly over "keyword targeted internet advertising." He claims that Google has removed a large number of search terms from the bidding process to force small businesses to compete for higher-priced keywords. Small advertisers are being forced out of the AdWords market, which makes advertising more profitable for Google's largest advertisers (the well-known established advertisers with the higher clickthrough rates like eBay).

Prior to using AdWords, every customer must click on a box acknowledging that they agree to the terms and conditions of Defendant's contract. These terms contain a forum selection clause stating that disputes or claims arising out of the contract are to be adjudicated in Santa Clara County, California. The court held the forum selection clause to be valid and transfered the dispute to the Northern District of California at San Jose.

For more information on the lawsuit see:


2. Lawsuit against Google's video service

In Google's most recent filing with the U.S. Securities and Exchange Commission, covering the quarter ending Sept. 30, the search giant revealed that its own online video-sharing service is the subject of a copyright infringement lawsuit. Google downplayed the lawsuit but did not offer any additional details about it: "This is a small lawsuit over a single video that appeared briefly."

The information could be related to cease and desist letters sent to Google by Landmark Education. The case involves a documentary film that aired on French TV in 2004 and was critical of Landmark Education and appeared on YouTube and Google. The film features hidden camera footage shot inside a Landmark Forum event in France and a panel discussion on whether or not the organization is a “cult.” Landmark demands details of the identity of the person(s) who had uploaded copies (with English-language subtitles) to these websites. For more information on the case see the EFF-Website.

On November 17, 2006, the Apologetics Index website received a Cease and Desist letter from attorneys in Amsterdam representing Landmark Education. The letter stated that Landmark Education demanded Apologetics Index remove their hyperlink to the Cult Awareness Information Centre's streaming video version of the documentary, due to alleged "copyright infringement" of their "Landmark Forum Leaders Manual" (TXu 1-120-461). The Apologetics Index responded on their site that after reading the responses from the Electronic Frontier Foundation, they do not intend to comply with Landmark's demands. Further information on this matter is available on the Apologetics page on Landmark Education.


3. Australian copyright law and search engines

Google has warned that proposed changes to Australia's copyright laws could open the way for copyright owners to take legal action against search engines for caching and archiving and thus drive the country back to "the pre-Internet era". "Given the vast size of the Internet, it is impossible for a search engine to contact personally each owner of a web page to determine whether the owner desires its web page to be searched, indexed or cached," Google said. "If such advanced permission was required, the internet would promplty grind to a halt."

  • November 7, 2006: New Australian copyright rules 'restrictive': Google, Sydney Morning Herald:
    "Internet search engine Google has asked for more flexibility in new federal copyright laws, warning Australian businesses could be held back because the new rules are too restrictive."

For more information on the Copyright Amendment Bill 2006 (Text of the bill and Explanatory memoranda) visit the Australian Copyright Council Website!


4. Google Book Search - Latest Developments in October / November 2006

  • Google said that it will subpoena two of its fiercest competitors, Yahoo! and Microsoft, for information relating to their own book scanning operations (Microsoft and Yahoo have joined up to build their own book search with an organization called the Open Content Alliance) as part of the case against the The Association of American Publishers and the Authors Guild (for more information see The Register)

  • University of Wisconsin-Madison is the next university to join Google's Book Search Project. The University has one of the largest collections of historical documents and books in the US, accounting for about 7.2 million holdings (University of Wisconsin-Madison has their release here and Google has their release here and Reuters has their article here).

  • Motions for summary judgments in Authors Guild v Google have been delayed at Google's request, and will not be filed until January 2008.

  • The Authors Guild filed its lawsuit against Google on Sept. 20, 2005, a group of major book publishers led by The McGraw Hill Companie filed their's against Google a month later. U.S. District Judge John Sprizzo on October 12, 2006 consolidated the two cases. There will just be one discovery phase to determine what's to be presented in both cases.

  • The French publishers union, Le Syndicat National de l'Edition (SNE), has joined book publisher Le Martiniere Groupe in its copyright suit against Google (CNet /


5. v. Google - Ruling at the end of 2006?

Judge Jeremy Fogel of the US District Court for the Northern District of California heard arguments in a lawsuit by Kinderstart, a Connecticut-based web parenting site that features links to information about raising children, sued Google on numerous counts for the ranking drop. Allegations include violations of antitrust, free speech, unfair competition and defamation and libel laws.
Judge Fogel said he would take until at least the end of the year to render a formal ruling on whether the case should proceed or be dismissed

New Court Documents LLC v. Google, Inc., No. C 06-2057 RS (N.D. Cal. hearing on motion to dismiss Oct. 27, 2006)

Also see:


6. Liability for hyperlinks in Greece

In Greece, Antonis Tsipropoulos was arrested at home at the end of October by the police following a complaint from a controversial Greek televangelist that Mr Tsipropoulos's blog aggregation site,, linked to slanderous material.


7. Google faces court in Italy and France

A Milan prosecutor is reportedly investigating two legal representatives of Google for being accessories to "aggravated defamation" after the Internet search engine posted a video showing the violent bullying of a disabled teenager. A spokeswoman for Google in Europe said the internet search engine was sorry for the distress caused and had acted swiftly when it was informed of the video's content.

Google France was sued by Flach Film, a French film producer, for copyright infringement. They claim their video, "The World According to Bush," was published on Google Video France, and viewed more 50,000 times, before Google removed the video. "We made estimates of the prejudice, and it goes well beyond 500,000 euros ($648,700). The film has been downloaded about 50,000 times, and it has certainly been copied afterwards," Jean-Francois Lepetit, producer of the film, told Reuters in a telephone interview.

  • November 23, 2006: French film producer sues Google France, Reuters:
    "The producer of "The World According to Bush" has taken legal action against Google for distributing the film for free, becoming the latest media company to seek compensation for lost business on the Internet."


8. Belgium: Copiepresse v. Google Update

After a three hour hearing, a Belgian court said it would wait until after the new year to decide whether to uphold an injunction blocking Google Inc. from reproducing snippets of Belgian press reports. Google's lawyers insist that the company had not broken copyright law by showing headlines, a few lines of text and a link to the original story. Because of an earlier ruling, Google has stripped Belgian newspaper content from Google News.

Separately, Google reached a deal with two other groups that had been plaintiffs in the Google News lawsuit in Belgium. Details were not disclosed.

And in Scandinavia? The Norwegian association for media companies, Mediebedriftenes Landsforening, argues that Google News Norway cannot make use of photographs without a proper agreement.

According to Dagens Næringsliv the association has sent a letter to Google Norway arguing that this use of photographs is in violation with Norwegian copyright law.

  • November 22, 2006: Google News finds more trouble in Europe, InfoWorld:
    "Google is facing mounting protests from newspaper publishers in Europe, the impact of which could ultimately affect the amount of content available to end users through search engines."


9. Trademarks as meta tags not permissible in Germany

Contrary to the view of the Düsseldorf Regional Court, which had held that the use of trade marks as meta tags was not perceived by users as a reference to the trade mark owner, the German Supreme Court has ruled in a long awaited decision that the inclusion of a competitor’s trade mark as an invisible meta tag in a web site amounts to trade mark infringement. So under German law it is not permissible to use trademarks as meta tags.


10. Trademarks as keywords not permissible in the USA?

German courts are still split on the question whether the use of trademarks as keywords that trigger the display of ads are permissible. So are courts in the USA. According to the latest decision Buying for the Home, LLC v. Humble Abode, LLC, 03-CV-2783 (JAP) (D.N.J. Oct. 20, 2006) buying keywords constitutes trademark use.

Are advertisers making a trademark use in commerce when they buy keyword advertising.?The court summarized the latest court decisions in the USA as follows:

"Plaintiff alleges Defendants purchased advertising linked to the search term TOTAL BEDROOM from the search engine company Google. Google, as well as other search engines, “sell[s] advertising linked to search terms, so that when a consumer enters a particular search term, the results page displays not only a list of Websites generated by the search engine program using neutral and objective criteria, but also links to Websites of paid advertisers (listed as ‘Sponsored Links’).” Gov't Employees Ins. Co. v. Google, Inc., 330 F. Supp. 2d 700, 702 (E.D. Va. 2004). The advertisement and link to Humble Abode’s website appeared on the far right of the screen, separate and apart from the search results list, under the heading “Sponsored Links.” Humble’s advertisement does not display the mark TOTAL BEDROOM.
To be actionable under § 43(a) of the Lanham Act, a defendant’s “use” of a plaintiff’s mark must be “in commerce” and “on or in connection with any goods or services, or any container for goods.” 15 U.S.C. 1125(a). In this regard, courts presented with claims similar to  those in the present case involving the purchase or sale of trademarks as search engine keywords generally have examined whether the defendant’s alleged “use” of the mark constituted a “trademark use” generally, i.e., commercial use of the mark as a trademark, e.g., 800-JR Cigar, Inc., v., Inc., Civil Action No. 00-3179, 2006 WL 1971659, *6-8 (D.N.J. July 13, 2006), or have examined “use” by looking more specifically at the definition of “use in commerce” under the Lanham Act, e.g., Merck & Co. v. MSD Technology, L.P., 425 F. Supp. 2d 402, 415-16 (S.D.N.Y. 2006). The Third Circuit has not spoken on the issue of whether the purchase and/or sale of keywords that trigger advertising constitutes the type of “use”
contemplated by the Lanham Act, and decisions from other courts that have addressed the issue are conflicting. In a recent decision in the Southern District of New York, Merck & Co. v. MSD Technology, plaintiff drug company brought an action against various Canadian entities that operated online pharmacies alleging, inter alia, unfair competition and trademark infringement under federal and state law. The Canadian entities had purchased from the Internet search engine companies Google and Yahoo! the right to have links to their website displayed as “Sponsored Links” when a computed user conducted a search using plaintiff’s mark ZOCOR. The court, in granting defendant’s motion to dismiss, found that

in the search engine context, defendants to do not ‘place’ the ZOCOR marks on any goods or containers or displays or associated documents, nor do they use them in any way to indicate source or sponsorship. Rather, the ZOCOR mark is “used” only in the sense that the computer user’s search of the keyword “Zocor” will trigger the display of the sponsored links to defendants’ websites. This internal use of the mark “Zocor” as a key word to trigger the display of sponsored links is not use of the mark in a trademark sense.
Merck & Co., 425 F. Supp. 2d at 415.

Another district court addressing similar claims on similar facts found differently. In Edina Realty, Inc. v. The, Civ. 04-4371JRTFLN, 2006 WL 737064 (D. Minn. March 20, 2006), the defendant, a direct competitor of plaintiff, had purchased from Google and Yahoo! search terms that were identical or similar to plaintiff’s EDINA REALTY trademark. In denying the defendant’s motion for summary judgment, the Court found defendants use of the mark constituted a “use in commerce” under the Lanham Act, holding:

While not a conventional “use in commerce,” defendant nevertheless uses the Edina Realty mark commercially. Defendant purchases search terms that include the Edina Realty mark to generate its sponsored link advertisement. See Brookfield Communs., Inc. v. W. Coast Entm't Corp., 174 F.3d 1036, 1064 (9th Cir.1999) (finding Internet metatags to be a use in commerce). Based on the plain
meaning of the Lanham Act, the purchase of search terms is a use in commerce.

Edina Realty, 2006 WL 737064 at *3.

Similar actions brought against defendants who engage in the sale of the search terms, as opposed to the purchasers of those terms, have likewise reached differing conclusions concerning “use.” Compare Rescuecom Corp. v. Google, Inc., No. 5:04-cv-1055, 2006 WL 2811711 (Sept. 28, 2006) (granting Google’s motion to dismiss finding that “in the absence of allegations that defendant placed plaintiff's trademark on any goods, displays, containers, or advertisements, or used plaintiff's trademark in any way that indicates source or origin, plaintiff can prove no facts in support of its claim which would demonstrate trademark use”) with 800-JR Cigar, Inc., v., Inc., Civil Action No. 00-3179, 2006 WL 1971659, *8 (D.N.J. July 13, 2006) (denying summary judgment and finding sufficient evidence to support claim that defendant made “trademark use” of plaintiff’s mark where defendant (1) accepted bids on the plaintiff's trademark from the plaintiff's competitors, thereby trading on the value of the marks; (2) ranked paid advertisers before “natural” listings among the search results, thereby acting as a conduit to steer competitors away from plaintiff; and (3) suggested search terms including the plaintiff's trademarks to the plaintiff's competitors); Google v. American Blind & Wallpaper Factory, Inc., No. 03-05340, 2005 WL 832398 (N.D. Cal. Mar. 30, 2005) (denying motion to dismiss in light
of the unsettled state of the law with respect to actionable “use” of a trademark in the search engine context); GEICO v. Google, Inc., 330 F. Supp. 2d 700 (E.D. Va. 2004) (denying motion to dismiss finding allegations that defendant allowed advertisers to bid on trademarks as search terms and to pay for advertising linked to trademarks were sufficient to establish trademark use). The Court is mindful of the challenges that sometime arise in applying existing legal principles in the context of newer technologies. As expressed by the Edina Realty court, supra, Defendants’ alleged use of Plaintiff’s mark is certainly not a traditional “use in commerce.” 2006 WL 737064 at *3. Nonetheless, the Court finds Plaintiff has satisfied the “use” requirement of the Lanham Act in that Defendants’ alleged use was “in commerce” and was “in connection with any goods or services.” 15 U.S.C. 1125(a)(1). First, the alleged purchase of the keyword was a commercial transaction that occurred “in commerce,” trading on the value of Plaintiff’s mark. Second, Defendants’ alleged use was both “in commerce” and “in connection with any goods or services” in that Plaintiff’s mark was allegedly used to trigger commercial advertising which included a link to Defendants’ furniture retailing website. Therefore, not only was the alleged use of Plaintiff’s mark tied to the promotion of Defendants’ goods and retail services, but the mark was used to provide a computer user with direct access (i.e., a link) to Defendants’ website through which the user could make furniture purchases. The Court finds that these allegations clearly satisfy the Lanham Act’s “use” requirement.

Also see:



New in Legal Resources

  • Liesching, Marc, Anmerkung zu OLG Stuttgart - Strafrechtliche Verantwortlichkeit für Hyperlinks, MMR 2006, 390-392

  • Spieker, Oliver, Anmerkung zu KG - Störerhaftung für persönlichkeitsrechtsverletzende Suchergebnisse, MMR 2006, 395-396

  • Wimmers, Jörg / Schulz, Carsten, Anmerkung zu LG Bielefeld - Thumbnails, CR 2006, 350-352

  • Hüsch, Moritz, Keyword Advertising, MMR 2006, 357-361

  • Niiranen, Ossi, Online Access to the World's Libraries, CRI 2006, 65-70

  • Reston, Westermeier, Perfect 10 v. Google, Remarks, CRI 2006, 88-89

  • Hartl, Robert, Keyword-Advertising mit geschützten Kennzeichen - eine Kennzeichenrechtsverletzung?!, K&R 2006, 384-388

  • Roggenkamp, Jan Dirk, Verstößt das Content-Caching von Suchmaschinen gegen das Urheberrecht?, K&R 2006, 405-409


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Latest News - Update 71

Legal trouble for YouTube in Germany

Germany: Employer may google job applicant

EU: Consultation on the E-Commerce-Directive

WIPO Paper on tradmarks and the internet

The ECJ and the AdWords Cases



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