Update 46: January 21, 2007
1. Quicksilverscreen: Liablity for linking
QuickSilverScreen is a US based website that is
being forced to shut down or be given away for free after Fox claimed that
linking to TV Shows on video sharing sites like YouTube and DailyMotion is
2. Australian court
rules against MP3 link site (see
Update 32 for more information on the lawsuit)
The Australian Federal Court in Cooper v.
Universal Music Australia found the operator of mp3s4free.net and an ISP
guilty of authorizing copyright infringement by providing a search engine that
enabled Internet users to illegally download MP3 files.
December 19, 2006:
Reactions to the Cooper decision
3. Dutch Court explicitly allows Google to
continue broad matching
According to the Amsterdam District Court, Google's
practice of broadmatching does not raise any trademark concerns where an
advertisement is triggered by a non-trademarked term (i.e. date) even though the
search query contains a trademarked term (here: farm date).
Endless Webdesign is the owner of the word mark
"Farm Date" and demanded that Google remove the sponsored hyperlinks that appear
when search terms "farm date" and "farm-date" are used. Google succesfully
argued that most of the objected advertisements were shown based on the adword
"date". The court ruled that Google didn't infringe plaintiffs trademark by
offering this adword.
So the court explicitly allowed Google to continue
broad matching. Google's own Complaint Procedure for trademark rights outside
the USA and Canada reads:
please be aware that we do not take any action in situations where an
advertisement is being triggered by non-trademarked terms even though the search
query contains a trademarked term. This stems from the fact that Google allows
advertisers to use a broad matching system to target their ads. For example, if
an advertiser has selected the keyword shoes , that advertiser's ad will appear
when a user enters the word "shoes" as a search query, regardless of other
search terms that may be used. So, the ad would show if the user entered any of
the following search queries: "tennis shoes," "red shoes," or "Nike shoes." This
system eliminates the need for the advertiser to specify individually the many
different search query combinations that are relevant to their ad."
Amsterdam District Court, Decision of August 24, 2006, Endless Webdesign v.
Google Netherlands B.V.
Another verdict on the use of Google ‘adwords’ in the Netherlands:
On November 12, 2004 the District Court of The Hague
held that Yiggers' use of the AdWord "Pretium" (trademark and trade name of its
competitor) is an infringement on Pretium's intellectual property rights. Google
did not join these proceedings.
District Court The Hague, November 12, 2004,
Computerrecht 2005, 7 (Pretium - Yiggers)
4. Meta-Search-Service as unfair competition in
According to the Trondheim District Court, offering
a meta-search-service to facilitate a search in several data bases from
different real estate agents can infringe copyrights and sui generis database
rights. Although providing a meta-search-engine does not constitute an unfair
practice, bad faith can be generated by inferior quality leading users to hold
the service as a representative of the rights holder's database.
Decision by Trondheim District Court of March 17, 2006,
Eiendom AS and Finn.no AS v. Supersøk AS and Ekko It AS
5. Keyword Advertising and Metatags no Trademark
Violation in the USA, (but don't count on it)
Different courts in the USA are still coming to
totally different conclusions on AdWords and metatags. Here is the latest ruling:
According to a recent U.S. District Court of
Eastern Pennsylvania ruling, it's okay to insert trademarks in your meta tags
and to use trademarks when buying search ads, at least as long as the
names are not used in the actual ads (J.G.
Wentworth SSC Ltd v. Settlement Funding LLC, No. 06-0597 (E.D. Pa. Jan. 4,
2007)). There is no likelihood of confusion:
"Due to the separate and distinct nature of the
links created on any of the search results pages in question, potential
consumers have no opportunity to confuse defendant’s services, goods,
advertisements, links or websites for those of plaintiff. Therefore, I find that
initial interest protection does not apply here. Because no reasonable
factfinder could find a likelihood of confusion under the set of facts alleged
by plaintiff, I will grant defendant’s motion to dismiss."
6. A lawsuit over five
dollars - Bradley v. Google
is a lawsuit over five dollars.” So begins the court’s analysis. On August 19,
2006, Google AdSense terminated Bradley's account, removed all ads, and failed
to pay plaintiff the approximately five dollars in revenue that the ads on her
site had generated.
Theresa Bradley’s $250,000 lawsuit alleges that her
staff spent 100 hours placing Google AdSense ads…only to have Google remove them,
alleging that Bradley clicked on her own ads in violation of the AdSense user
agreement. (For more information on this hilarious
see Update 43). Her claims: false advertising under the Lanham Act, fraud,
interference with prospective business advantage, violations of California
Commercial Code § 2207 relating to alteration of contract terms, breach of
contract, unlawful interception of electronic communications under 18 U.S.C. §
2520, invasion of privacy under California law, and intentional destruction of
evidence, professional property, and personal property.
Only one of her eight claims survived a motion to dismiss: On August 24,
2006, plaintiff discovered that all of the emails in which she had communicated
with Google AdSense had been removed or deleted from her account. This claim for
injury to personal property was not dismissed.
Bradley v. Google, Inc.,
2006 WL 3798134 (N.D. Cal.)
Inc. v. JIT Packaging Inc.
According to the U.S. District Court for the Northern District of Illinoi (Uline
Inc. v. JIT Packaging Inc., N.D. Ill. No 04 C 1954, 6/26/06), Google and
Overture acted within their respective advertising agreements when they
restricted the use of certain comparative ads ("Save Up to 70% Over ULINE")
in response to complaints from a trademark owner. The court made it plain that
the trademark owner did not tortiously interfer with the advertiser's agreement. JIT
had argued that Uline pushed Google to breach its advertisement agreement by
forcing JIT to modify its ads even though Uline failed to comply with Google's "Trademark
Complaint Procedure": Google had acted upon a phone call from Uline. According
to the court, Google's policy does not state that it will only accept complaints
that comply with the preferred format.
8. Copiepresse Asks Yahoo to Remove Links
Copiepresse, a group representing French- and
German-language Belgian newspaper publishers, has asked Yahoo! Inc. to
remove links to their archived stories from its Web search service, claiming
they infringe copyright laws
Last September, Google has been
ordered by a Belgian court to remove all articles, photographs and graphics from
French-speaking newspapers (see
Update 43). Google appealed the decision. A court ruling is expected
early this year.
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