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Update 54: January 25, 2008

1. Hyperlinks pointing to pictures - Dangerous...

Imagine a case in which you consent to the posting of a picture of you on web site 1 but want a hyperlink to this site from web site 2 removed.

The U.S. District Court for the District of South Carolina held October 22, 2007 that the creation of a hyperlink pointing to a photo on a publicly accessible web site is not a misappropriation of the photo (BidZerk LLC v, Smith, D.S.C., No. 6:06109). Citing United States v. Gines-Perez, 214 F. Supp. 2d 205 (D. Puerto Rico 2002), the court said that "a claim of privacy is unavailable to someone who places information on an indisputably public medium, such as the Internet, without taking any measures to protect the information."

A very reasonable decision, don't you agree! Well same scenario, other country, other court. The Higher Regional Court in Munich held that a link in a satirical news article about a "controversial" lawyer leading to a web site with pictures of him showing him stripped to the waist wearing paintball battle attire, constitutes an invasion of the personal privacy of the lawyer concerned. The court dismissed the argument that the lawyer had consented to the original publication on the web site. The link had rendered the published images out of context.

 The decision has been criticized from several German legal experts for threatening the "right to link". Following the reasoning of the Higher Regional Court you better ask for consent before you link to pictures of persons. They might not like the context you are placing them in....



2. AdWords Lawsuits in Europe - Where do we stand at the beginning of 2008

Did you completly loose track what is going on with AdWords related cases worldwide? Me too! No Links & Law update without reports about new lawsuits. My "AdWords Lawsuit Worldwide" section had its last complete update in 2005 and is no longer up to date. In the following weeks I'll try to revamp this section. With this update I want to summarize the current situation in several European countries:


Despite several lower and higher regional court decisions in Germany there is no legal certainty yet. The German Federal Court of Justice (BGH) is expected to issue a decision on AdWords in 2008, hopefully bringing the many year long discussion to an end. In 2006, the BGH has held that the use of a trademark as a metatag constitutes trademark infringement. Even if the trademark itself is not displayed there can be a trademark use. Following the Meta-Tag decision, German courts mainly argue if metatags and keyword should be treated equal. Finding and reasoning differ. In my opinion there is no trademark infringement, if the advertisement is labelled as such and the trademark itself is not displayed in the ad (see Ott, MMR 2007, 123 f.).

Click here for a list of AdWords related lawsuits in Germany!

My German Links & Law Blog features the latest developments in this area! For more information in German also see this article!



In 2007 the Supreme Court of Austria held that the use of a trademark as a keyword infringes the rights of its owner, if the ad appears above the search results (advertisers can't choose between above and on the right side of the search results...) using the trademark as header (it is unclear if this citation of the trademark had an impact on the decision...). The decision has also been criticised for confounding arguments from trademark and unfair competition law. The court had reasoned that users could get the wrong impression that the advertiser is closely related to the owner of the trademark.

You can find the decision (in German) at


United Kingdom

Following the reasoning in the Reed Executive plc v. Reed Business Information decision (for more information see Update 37) it is unlikely that keyword advertising constitutes trademark infringement or the common law tort of passing off (Please note: There is no unfair competition law in the UK).



1. Advertisers in France should not use trademark protected terms as keywords. The Court of Nanterre, the Court of Paris, the Court of Appeal of Versailles - all have found that advertisers committed a trademark infringement. Only the Court of Strasbourg (decision of July 20, 2007, Atrya vs. Google and K par K/Techni Feneres) has stressed the initial function of a trademark to distinguish a product or a service and to associate it to a specific origin and found no trademark infringement. Nethertheless the court deemed the use of the trademark to be unfair competition (parasitism based on the profiting of the well known brand of a competitor). So far no French court held the use of trademark protected keywords to be legal!

2. As for the liability of search engines, courts in France differ on the reasoning. According to the Court of Nanterre Google is an active trademark infringer. The mere fact of suggesting the infringement by using the mark as proposed keyword is enough. The court of Paris in contrary underlines that Google does not use the trademark for identical or similar products / services in a commercial manner. So there is no trademark infringement. But nethertheless Google's conduct was not deemed legal. Google's liability was based on the common civil principle of fault (Section 1382 of the Civil Code) due to the lack of preliminary control to check whether chosen keywords do infringe third party rights. The Court of Strasbourg, (decision of July 20, 2007, Atrya vs. Google and K par K/Techni Feneres) took into account technical measures implemented by Google (a filter and links to check third parties' rights) and excluded Google's liability on all grounds. This is the most recent decision from France and the first to exclude a search engine from liability in an Adword related lawsuit! It remains to be seen if other courts adopt the approach of the Court of Strasbourg.

3. According to the Cour d'Appel de Paris, French courts have no jurisdiction if the incriminated ads lead only to websites owned by companies established outside France and appear only on, and, but not on (decision of June 6, 2007, Google Inc. and Google France v. Axa et al, CRI 2007, 155 ff.).



According to the Amsterdam Court of Appeal (Portakabin v. Primakabin, Decision of December 14, 2006) advertisers are allowed to use a trademark as keyword, at least when

- the use is in connection with the resale of the relevant branded product and

- the link in the ad leads directly to the subpage on which the branded products are offered for sale, and not to the homepage.

In all other cases... ???

 In 2006 the Amsterdam District Court had held that Google's practice of broadmatching did not raise any trademark concerns.


3. In short

  • In April 2007, The Beijing No. 2 Intermediate People's Court ordered Yahoo! China to pay about 200,000 yuan (26,000 dollars) in damages for assisting downloads of unlicensed music in other websites and delete 229 links to free songs. Yahoo China appealed, but the appeal was rejected by the Beijing Higher People's Court in December 2007, see The Inquirer.

  • Haidian People's Court in Beijing has dismissed a trademark lawsuit filed against Google. Beijing Gu Ge Technology sued Google China for trademark violation, claiming Google's Chinese name, "Gu Ge", was confusingly similar to its own name. The court found that Google China began using the name April 12, 2006, seven days before the other company registered its name. See CNet.

  • No update without new AdWords lawsuit: Boston Duck Tours, LP v. Super Duck Tours, LLC, 2007 WL 4465464 (D. Mass. Dec. 5, 2007). According to the court keyword advertising is a trademark use in commerce. For more information see: Keyword Advertising is TM Use in Commerce But Doesn't Violate Injunction--Boston Duck Tours v. Super Duck Tours, Technology and Marketing Law Blog

    And one more new AdWords related lawsuit: 1-800 Contacts, Inc. v., Inc., 2:08-cv-00015-SA (D. Utah complaint filed Jan. 8, 2008). For more information see: 1-800 Contacts Sues LensWorld for Keyword Advertising, Technology and Marketing Law Blog

New in Legal Resources

  • Tene, Omer, "What Google Knows: Privacy and Internet Search Engines" (October 2007). Available at SSRN:

  • Allgrove, Ben, The search engine's dilemma: implied licence to crawl and cache?, Journal of Intellectual Property & Practice, 2007, Vol.2, No. 7, pages 437-438

  • Givan, Sarah, Using Trademarks as Location Tools on the Internet: Use in Commerce?, The ICFAI Journal of Cyber Law, May 2006, 61-79

  • Van Asbroeck, Benoit / Cock, Maud, Belgian newspapers v Google News: 2-0, Journal of Intellectual Property & Practice, 2007, Vol.2, No. 7, pages 463-466

  • Turner, Mark / Callaghan, Dominic, You Can Look But Don't Touch! The Impact of the Google v Copiepresse Decision On the Future of the Internet, E.I.P.R. 2008, 34-38





The Links & Law website is updated regularily, so  check back for updated information and resources about search engine and linking issues.

You are currently in the archive with older news. A complete list of the updates can be found here!

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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