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Update 57: June 10, 2008

1. European Court of Justice will hear Google Adwords lawsuit!

So far, there have been more than 70 decisions on Adwords in EU member states, more than 30 in France alone. The rulings differ in finding and reasoning. The use of trademark protected terms as keywords may be legal in some member states (e.g. in Great Britain), may be illegal in other member states (e.g. in France and Italy). German courts are split on this question.

It seems that advertisers will finally get some very important advice. The European Court of Justice in Luxembourg will hear a trademark infringement suit concerning Google AdWords! Its decision will probably influence future adwords lawsuits in all 27 member states, because trademark law is harmonised across the EU (see: First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks), and could force Google to change its policy over trademarks and keywords in some member states.

In 2005 Louis Vuitton successfully sued Google; not only for allowing keyword combinations that associate plaintiff's protected marks with terms including "imitation", "fake" and "copies", but also for proposing such terms to would-be advertisers (Louis Vuitton Malletier / Google, Civil Court of Paris (TGI), February 4, 2005). In June 2006 The Paris Court of Appeals agreed with that decision and found Google guilty of trademark counterfeiting and unfair competition.

Google appealed to the Cour de cassation, the main court of last resort in France. The Court decided to ask the European Court of Justice whether the offering of alternative choices of (trademark protected) keywords breaches trade mark laws.

The decision can be found at: (French). For comments see, (both French) and (German)

There have been two more AdWords related court decisions in France this year:

  • Tribunal de Grande Instance Lyon, decision of March 13, 2008 - "Rentabiliweb"

  • Tribunal de Grande Instance Paris, decision of March 14, 2008 - "Citadines"

Also see:

2. USA - Court: Keyword Metatags are a poor indicator of relevancy

After more than ten years of metatag cases: The United States District Court for the Eastern District of Wisconsin is the first to realize that keyword metatags don't matter to search engines!

Standard Process, Inc. v. Banks, 2008 WL 1805374 (E.D. Wis. April 18, 2008):

"Like the plaintiff in Promatek, Dr. Banks used Standard Process trademarks in the metatags of his website. However, today “modern search engines make little if any use of metatags.” ... As more and more webmasters “manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy.” Accordingly, search engines today primarily use algorithms that rank a website by the number of other sites that link or point to it."

For more information on the case see: Goldman, Eric, Court Says Keyword Metatags Don't Matter - Standard Process v. Banks, Technology & Marketing Law Blog


3. Belgium - Copiepresse v. Google - The copyright battle continues

Back in April 2006 the Belgian newspaper group Copiepresse filed a lawsuit against Google for re-printing parts of their articles and headlines on Google News and caching their web pages. Google lost in 2007, but appealed the decision. For over a year, Google and Copiepresse went into negotiations and tried to find a solution, but it now seems those talks have broken down. Copiepresse wants Google to pay 4 million Euro immediately, and maybe more later. Professor Alain Berenboom of the Free University of Brussels estimates that the losses attributable to Google's activities were between € 32.8 million and € 49.2 million for a single year! I very much doubt that the newspapers really suffered such a loss. Quite on the contrary. Without Google, they probably would have had less visitors and less income from ads. To win the case, Copiepresse has to show that the headlines and extracts are copyright procted and with regard to the caching issue, that Google's behavior amounts to copyright infringement (which is very likely in European countries, because of the lack of a "fair use" defence).

The court case will resume on September 18 to decide if the infringements are valid and whether the damages payment is reasonable.

For more information see: Belgian group seeks up to $77.2 mln from Google, Reuters


4. USA - Citysearch faces click fraud lawsuit

Tom Lambotte is suing, because the advertising company allegedly charged him improperly for "fraudulent clicks". In his view, Cityseach failed to take any significant measures to track or prevent click fraud and fails to adequately warn its existing and potential customers about the existence and prevalance of click fraud. The incident described in the complaint seems to be of minor importance. Between December 11, 2007 and December 25, 2007 Lambotte received a total of nine clicks on his ads, between December 26, 2007 and the end of December his ad received between 12 to 16 porported clicks per day. If this sudden increase of clicks is the result of click fraud, remains to be seen. Even if this is the case, the damage the plaintiff might have suffered, might not be higher than 50 US-Dollars...

Lambotte v. IAC/InterActiveCorp. (Cal. Superior Ct. complaint dated May 27, 2008)

For more information see:


5. USA - Hyperlink to child pornography = Distribution?

According to a military appellate court's decision in the USA, the act of distributing a hyperlink to an online source of child pornography does not subject the defendant to criminal liability for distributing the child pornography available at that web site.

P. Navrestad was charged under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000), with distributing and possessing child pornography in violation of the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. §§ 2251-2260 (2000). He had send a hyperlink to a Yahoo! Briefcase during an Internet chat session. The linked to site contained child pornography images. 18 U.S.C. § 2256(8) defines child pornography as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture . . . of sexually explicit conduct, where . . . the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct." "Visual depiction” in turn, “includes . . . data stored on computer disk or by electronic means which is capable of conversion into a visual image.” 18 U.S.C. § 2256(5).

So the key question was whether a hyperlink contains “data stored . . . by electronic means which is capable of conversion into a visual image." The court stressed the fact that a hyperlink only provides the recipient with a path to another website. It does not contain data itself. So the court held that Navrestad did not distribute child pornography. But the decision was a close one, 3:2. In his dissenting opinion, judge Effron wrote: "The recipient’s ability to access and use images transmitted by hyperlink is functionally indistinguishable from the ability to access and use images transmitted as individually saved files."

United States v. Navrestad, No. 07-0199 (C.A.A.F., May 14, 2008).

Also see:


6. USA - Google sued over "fraudulent" AdWords (Goddard v. Google)

Jenna Goddard claims she was injured when she provided her cell phone number to an allegedly fraudulent mobile subscription service website and was charged for unwanted mobile content services in form of premium text messages. But instead of suing the subscription service, she went after Google and sued the company. Why? Goddard says that she performed a Google search for "ringtone" and an ad pointed her to the scammy ringtone provider.

In its Content policy Google only allows a ad for a mobile subscription service, if it accurately discloses a host of higly relevant information to consumers, such as the service's price, subscription period and cancellation procedures (for details see Goddard claims that Google is aware that mobile subscription services frequently do not disclose these terms, but driven by financial motivations does not live up to its contractual obligations not to run ads for these companies. "Fortunately for deceptive mobile subscription services, Google has systematically declined to live up to its contractual obligations, irrespective of its public pronouncements to do so, opting instead to line its own pockets through an 'anything goes' approach to the advertising and sale of mobile content," reads the complaint.

Goddard hopes to have the lawsuit elevated to class status.

Goddard v. Google, Inc., Case No. 108CV111658 (Cal. Super. Ct. complaint dated April 30, 2008). Google's notice of removal to federal court C08 02738 (N.D. Cal. removal notice dated May 30, 2008).

For more information see: Goldman, Eric, Google Sued for Running Ads for "Fraudulent Mobile Subscription Services"--Goddard v. Google, Technology & Marketing Law Blog


7. USA - Designer Skin v. S&L Vitamins: Keyword Metatags and Ads No Initial Interest Confusion

S & L Vitamins had used Designer Skin’s trademarks in the metatags and source codes of its websites, and as search-engine keywords, to inform internet consumers who are searching for Designer Skin’s products that those products are for sale on S & L Vitamins’ websites. The United States District Court held that there was no initial interest confusion. It stressed the fact that S & L Vitamins’ use of Designer Skin’s trademarks accurately described the contents of its websites:

"In contrast to the deceptive conduct that forms the basis of a finding of initial interest confusion, S & L Vitamins uses Designer Skin’s marks to truthfully inform internet searchers where they can find Designer Skin’s products. Rather than deceive customers into visiting their websites, this use truthfully informs customers of the contents of those sites. Indeed, in practical effect S & L Vitamins invites Designer Skin’s customers to purchase Designer Skin’s products. The fact that these customers will have the opportunity to purchase competing products when they arrive at S & L Vitamins’ sites is irrelevant. The customers searching for Designer Skin’s products find exactly what they are looking for when they arrive at these sites. S & L Vitamins is not deceiving consumers in any way. Thus, its use of the marks does not cause initial interest confusion."

Designer Skin, LLC v. S & L Vitamins, Inc., 2008 WL 2116646 (D. Ariz. May 20, 2008)

For more information see:


8. In short

  • Three French websites have been found guilty of invading an actor's privacy for publishing links to articles containing the offending material. The Paris Tribunal has fined the operators of all three sites. For more information see French sites fined for linking to privacy-invading content, Out-Law.
  • A US court has ordered a company to use 'negative keywords' to avoid being associated with another firm's trade mark. Orion Bancorp Inc. v. Orion Residential Finance LLC, 2008 WL 816794 (M.D. Fla. March 25, 2008). For more information see Goldman, Eric, Injunction Requires Negative Keywords in Future Adwords Campaigns, Technology & Marketing Law Blog.
  • Online retailer is suing Yahoo Inc. for $1 million, alleging that it was overcharged nearly that amount because it was the victim of click fraud. Reportedly, Yahoo offered Bigreds a $17,000 refund and had admitted that the clicks were invalid. See Computerworld. For court documents visit:
  • An open letter sent to Google by US consumer and privacy groups urged the company to add a link from its homepage to its privacy policy. In Europe, the Article 29 Working Party also called for a link on the homepage ("Users must be able to easily access the privacy policy before conducting any search, including from the search engine home page"). Google told Out-Law that the company is refusing the request, see Google needs link to privacy policy on homepage, say privacy groups.
  • In October 2007, the Court of Milan held that the use of a trademark protected term as keyword was not trade mark infringement by neither Google nor the advertiser. It was, however, unfair competition by the advertiser (Key 21 v Mulitiutility and Google Italy).


New in Legal Resources

If you understand German, check out my article about search engine law 2007 "Die Entwicklung des Suchmaschinen- und Hyperlink-Rechts im Jahr 2007" (published in WRP 2008, 393-413)!

  • Graeber, Christoph / Franz, Cornea, Anmerkung zu OLG Düsseldorf - AdWords, EWiR 2007, 531-532

  • Volke, Claus, Anmerkung zu OLG Köln - AdWords, Mitteilungen deutscher Patentanwälte 2008, 30-34

  • Wechsler, Andrea, Yahoo China erleidet Niederlage, Baidu gewinnt gegen die internationale Musikindustrie, GRUR Int. 2008, 269-270

  • Meyer, Sebastian, Aktuelle Rechtsentwicklungen bei Suchmaschinen im Jahre 2007, K&R 2008, 201-208





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

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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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