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Update 56: April 15, 2008

1. Abortion and religion-related content is inappropriate, Google says

Ads for non-religious sites with views on abortion? No problem! Adverts for pornographic sites? Sure! But abortion and religion related content? No way! So Google refused to run a pro-life ad for The Christian Institute's website,, ("UK abortion law - news and views on abortion from the Christian Institute"), because "abortion and religion-related content" is "inappropriate content" according to Google's policy.

Lawyers for the Institute say this is unlawful discrimination under the Equality Act 2006. They demand that Google change its policy or face legal action. 

2. German Jewish Group Sues Google over YouTube
The Central Council of Jews in Germany filed a temporary injunction March 20, 2008, against Google in Hamburg District Court. The Jewish group demands that Google pull hate videos from its YouTube subsidiary. Among the offending videos was one in which a photo of the late president of the Central Council, Paul Spiegel, was burned against a background of swastika
s. According to Business Week, Stephan Kramer, the general secretary of the Central Council of Jews explained the move: "The radical right-wing scene is using YouTube, massively, as a platform. We are accusing Google, with its YouTube video platform subsidiary of being an accomplice to inciting racial hatred and discrimination."


3. Self-Regulatory Principles on Behavioral Advertising

In December 2007, the Federal Trade Commission (FTC) released a set of proposed principles to guide the development of self-regulation in the area of online behavioral advertising. Behavioral advertising means the tracking of a consumer’s activities online – including the searches the consumer has conducted, the web pages visited, and the content viewed – in order to deliver advertising targeted to the individual consumer’s interests. One proposal is aimed at more transparency and consumer control:

"Every website where data is collected for behavioral advertising should provide a clear, concise, consumer-friendly, and prominent statement that

(1) data about consumers' activities online is being collected at the site for use in providing advertising about products and services tailored to individual consumers’ interests, and

(2) consumers can choose whether or not to have their information collected for such purpose. The website should also provide consumers with a clear, easy-to-use, and accessible method for exercising this option."

The guidelines are partly intended to adress concerns over the Google-DoubleClick deal. So far Google is not engaged in behavioral advertising, but declines to say whether the merger will facilitate respective plans.

 Also see:

  • Alexis, Alexei, Behavioral Advertising - Search Engine Firms Expected to Face Continued Hill Scutiny, Electronic Commerce & Law Report 2008, 121-123


4. Sponsored Links decision in the U.K.

Google changes its trade mark policy in the UK and in Ireland: The use of trade marked terms to trigger ads will be allowed, starting May 5. This move brings the policy in line with the one in the US and Canada.

Google might have announced the change because of a recent High Court Ruling that cleared Yahoo of trademark infringement. Victor Wilson, owner of a London based catering business had sued Yahoo, after discovering that typing Mr Spicy, a name that he registered as a Community Trade Mark, triggered sponsored links for Sainsbury's supermarket. Yahoo asked for summary judgement, arguing that it had not used plaintiff's trademark, and got it:

"The trade mark in this case is not used by anyone other than the browser who enters the phrase "Mr Spicy" as a search query in the defendants' search engine. In particular, the trade mark is not used by the defendants. The response of the defendants to the use of the trade mark by the browser is not use of the trade mark by the defendants.

That is enough to decide the case in the defendants' favour. But the matter does not stop there. If, by some process of reasoning, one were to hold that the search engine's response to the words used by the browser was, itself, use by the defendants, in my judgment, it is not use of the mark "Mr Spicy". What, instead, is being used is the English word "spicy" as it appears in that phrase."

But please note: The advertiser had used the word "spicy" as keyword, not "Mr Spicy", so its still possible that buying a keyword that matches another firm's trade mark is unlawful in the UK.

Google's decision might be a dangerous one that leads to more lawsuits.

Also see:

Victor Andrew Wilson v. Yahoo! UK Ltd. / Overture Services Ltd., Decision of February 20, 2008


5. First Google street view lawsuit in the USA: Boring v. Google

Google allegedly took pictures from what was labeled as “private property” for its Street View Feature. So, Aaron and Christine Boring filed suit in Allegheny County court on April 2, 2008. They are demanding $25,000 to make up for the "mental suffering" and the diminished value of their home. Google claims that this lawsuit is pointless since anyone can ask them to have pictures removed without legal action. You can watch some of the pictures of the property and the complaint here.

Also read: Mr. and Mrs. Boring sue Google over Street View pics - "No one will compromise our privacy but us", The Register


6. Article 29 Data Protection Working Party Report: Opinion on data protection issues related to search engines

A report by the European Union's privacy panel, the Article 29 Data Protection Working Party, demands that search engines follow EU privacy regulations, even when the services are headquartered outside the European Union. They should delete personal data held about their users within six months.

Key findings of the report:

  • The Data Protection Directive (95/46/EC) generally applies to the processing of personal data by search engines, even when their headquarters are outside of the EEA.

  • Search engines may only process personal data for legitimate purposes and the amount of data has to be relevant and not excessive in respect of the various purposes to be achieved.

  • In view of the initial explanations given by search engine providers on the possible purposes for collecting personal data (e.g. Service improvements, system security, fraud prevention, personalised advertising), the Working Party does not see a basis for a retention period beyond 6 months.... In case search engine providers retain personal data longer than 6 months, they will have to demonstrate comprehensively that it is strictly necessary for the service.... If there is no legitimate ground for processing, or for use beyond the well-specified legitimate purposes, search engine providers must delete personal data. Instead of deletion, search engines may also anonymise data, but such anonymisation must be completely irreversible for the Data Protection Directive to no longer apply.

  • The Working Party finds that the correlation of personal data across services and platforms for authenticated users can only be legitimately done based on consent, after the users have been adequately informed.

  • Users of search engine services have the right to access, inspect and correct if necessary, according to Article 12 of the Data Protection Directive (95/46/EC), all their personal data, including their profiles and search history.

  • Cross-correlation of data originating from different services belonging to the search engine provider may only be performed if consent has been granted by the user for that specific service.


7. Important thumbnail decision in Germany

So far, German courts were split on the question, if copyright law allows the creation and display of thumbnail images by picture search engines.

There have been two major decisions, one by the District Court of Hamburg (Case No. 308 O 449/03, full text available at: and the second by the District Court of Erfurt (Case No.: 3 O 1108/05, full text available at:

 The District Court of Hamburg ruled against Google's German news service when it found that thumbnail images, that were displayed beside excerpts from various news stories, were protected under German copyright law and could not be reproduced without permission.

 The District Court of Erfurt argued that webmasters must brace themselves for other users to link to their works. The court stressed the fact that the thumbnails cannot be enhanced into high quality images and that the depiction of thumbnails is beneficial to the copyright holder, because visual search engines help users to locate them on the internet. Page owners had one easy way to prevent their pictures from appearing as thumbnails in search engine results, the court wrote. They can restrict access to the works on their site, e.g. by the use of a robots.txt file.

The plaintiff appealed the decision and the Thuringian Higher Regional Court (decision of February 27, 2008, Case No. 2 U 319/07 - full text in German) did not follow the reasoning of the District Court.

In accordance with prior cases the court found that the creation and display of thumbnail images is not allowed under the exemptions granted by the German Copyright Act. Google also failed to convince the court that the "implied consent" defense applies. In the eyes of the judges, the upload of a work on a web site is not enough to find that the copyright owner agrees to all search engine uses. So thumbnails used by picture search engines violate the German Copyright Act (I don't agree with this result, please see my article Green light for search engines to use thumbnail images?).

But then the court came up with a solution to dismiss the lawsuit. The plaintiff was engaged in search engine optimization. Under these circumstances, the court found that the plaintiff had attracted crawlers and was estopped from raising claims against search engines!

I don't think that it is a good idea to assume that the plaintiff abused her legal rights:

  • The plaintiff had used metatags (the decision only speaks of the keyword metatag - that is useless, if you want to optimize your pages for Google, but the plaintiff might have also used other metatags). Metatags don't "attract" crawlers. They are a way of telling search engines which keywords are relevant for a web site, but they don't influence how often a web page is visited. Metatags are used to increase the visibility of a web site within the (web) search results.

  • The court did not offer a solution what the plaintiff should have done, if she wanted her web site to appear in the web search results, but not in the picture search results. If she had optimized the pictures (which is very difficult to prove), than the reasoning of the court would have been correct, but only then.

  • In my view, it would have been better to consider the search engine optimization under the aspect of "implied consent". The use of the metatags shows that the copyright owner wanted his works to be found. So it would be consequent to assume, he impliedly consents to the necessary copyright uses by search engines.

For a more in depth analysis, see the comment in my German Links & Law Blog 


8. In short (it's all about adwords and metatags in the USA ...)


  • The U.S. District Court for the Eastern District of Kentucky denied a motion to dismiss without actually deciding whether the purchase of keywords was a trademark use, holding merely that the plaintiff's Lanham Act claim was "plausible". (T.D.I. Int'l Inc. v. Golf Preservations Inc., E.D. Ky., No. 07-313, 1/31/08)

  • In a case, where competetor's trademark was displayed in the ad copy, a federal court found initial interest confusion as a matter of law, because the defendant offered no evidence to show a lack of initial interest confusion and could offer no explanation for why he chose plaintiff's trademark as an Adword. (Storus Corp. v. Aroa Marketing Inc., 2008 WL 449835 (N.D. Cal. Feb. 15, 2008))
    For more information on this case see: Goldman, Eric, Adwords Ad Creates Initial Interest Confusion -- Storus v. Aroa, Technology & Marketing Law Blog

  • The Second Circuit heard oral arguments in Rescuecom v. Google. Click here for a comprehensive report by James Grimmelmann.


According to the 11th Circuit the use of trademarked terms in metatags constitutes trademark infringement. Judging from the statement that the description Google used in the search results included the trademarked term, the defendant probably used it in the description metatag.

North American Medical Corp. v. Axiom Worldwide, Inc., 2008 WL 918411 (11th Cir. April 7, 2008)

For more information on the case see: Goldman, Eric, 11th Circuit Freaks Out About Metatags - North American Medical v. Axiom, Technology & Marketing Law Blog


New in Legal Resources

  • Euler, Ellen, Web-Harvesting vs. Urheberrecht, CR 2008, 64-68

  • Wiebe, Andreas, Suchmaschinenmonopole und Kartellrecht, Medien und Recht Int. 2007, 179-187

  • Ernst, Stefan, Suchmaschinenmarketing in der aktuellen deutschen Rechtsprechung, Medien und Recht Int. 2007, 195-200

  • Weichert, Thilo, Datenschutz bei Suchmaschinen, Medien und Recht Int. 2007, 188-194

  • Klein, Sheldon / Huffnagle, Henry, Split Decisions: The Issue of "Use" in the Context of Search Engine Keyword-Triggered Advertising, Intellectual Property & Technology Law Journal, Volume 19, Number 12, December 2007, 1-8





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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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