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Update 58: August 17, 2008

1. Purchased Ads on parked domains

A class-action lawsuit filed in May 2006 against Yahoo! Inc. accused the company of engaging in "syndication fraud" against advertisers who pay Yahoo to display their ads on search results and on the Web sites of partner pages. The suit claims that Yahoo also displayed the ads via spyware and adware products and on so-called "typosquatter" web sites that capitalize on misspellings of popular trademarks or company names.

For more information see the Technology & Marketing Law Blog: Yahoo "Syndication Fraud" Lawsuits--Crafts by Veronica v. Yahoo and Draucker Development v. Yahoo / Search Engine Advertiser Litigation Updates

Now, Google has also been hit with a lawsuit for the alleged sale of "low quality" ads on parked domains and error pages. The complaint alleges  that Google is guilty of "unjust enrichment" by promising high-quality ad placements and then serving a substantial portion of ads on low-quality sites. Plaintiff Levitte claims that 16,3 % of all the clicks in his campaign came from such sites, but not a single one of those clicks led to a conversion. The suit seeks class-action status for everyone in the US with an AdWords account over the last four years.

One week later, online retailer RK West filed a similiar lawsuit against Google. The complaint alleges that the company purchased ads without realizing they would appear on parked domains.

See Levitte v. Google (complaint and Justia page) and RK West v. Google (complaint and Justia page).


2. MPAA fights film links sites

The Motion Picture Association of America (MPAA) has filed suits against and, alleging contributory copyright infringement and inducement of copyright infringement, because they provide links to copyright-infringing copies of movies.

"These sites contribute to and profit from massive copyright infringement by identifying, posting, organizing, and indexing links to infringing content found on the Internet that consumers can then view on-demand," said an MPAA statement.

Earlier this year, the MPAA settled two similiar cases against Showstash and Cinematube. The defendants admitted that they were liable for infringement. Showstash agreed to a payment of 2.7 million US-Dollar and Cinematube 1.3 million US-Dollar. The ruling in the Cinematube case reads: "Defendant has engaged in contributory copyright infringement and inducement of copyright infringement by actively searching for, identifying, collecting, posting, organizing, indexing, and posting on his website ( links to infringing material, which has been posted on thirdparty websites".


For more information see:


3. Information Commissioner: Street View no violation of privacy laws in Great Britain?

Google is expected to launch its controversial Street View feature in Great Britain later this year. After several complaints from citizens and due to opposition from privacy advocates, the Information Commissioner's Office took a closer look at the service and finally gave it his blessing: "We are satisfied that Google is putting in place adequate safeguards to avoid any risk to the privacy or safety of individuals, including the blurring of vehicle registration marks and the faces of anyone included in Street View images. Although it is possible that in certain limited circumstances an image may allow identification of an individual, it is clear that Google are keen to capture images of streets and not individuals."

Individuals can also complain about identifiable pictures and have them removed.

Google Cars have been spotted in several European countries in the last few months including Spain, Germany, France, Italy and Great Britain.

Also see:


4. Sex Selection Ads in India

The advertisement of products and techniques to aid in the selection of an unborn child's sex is an offense under India's "The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act". But Google India, Yahoo India and Microsoft still serve ads that claim to help in the selection of a child's sex. Following a complaint, India's Supreme Court asked the search engines to respond to the charges. 

For more information see:


5. Comments on FTC Behavioral Advertising Principles

In December 2007, the Federal Trade Commission released a paper titled "Online Behvioral Advertisement: Moving the Discussion Forward to Possible Self-Regulatory Principles" (See: Self-Regulatory Principles on Behavioral Advertising). It included four proposed principles:

  • transparency and consumer control

  • reasonable security and data retention

  • consent for changes to existing privacy policies

  • consent to using sensitive data for behavioral advertising.

The FTC called for comments and many companies and organisations sent statements (they can be found at The commentators agreed that the principles were a good start for the discussion, but also critized several aspects. Google said the principles are overly burdensome and too broadly defined.

As in Europe, Google sticks to its opinion that the IP adress is not a personally identifying information. The paper does not differentiate between personally identifying information and not personally identifying information.This would be a big problem: Principle 3 e.g. requires affirmative express consent for material changes to an online company's privacy policy. Google has a lot of unauthenticated users. How should they be asked for their consent?

Principle 4 would either require the affirmative consent, or simply prohibit, collection of sensitive personal data for behavioral advertising. Google criticises that "sensitive data" is not defined: ”As a result, Principle 4 would not allow Google to collect a search query for “cancer treatment” or “alcoholics anonymous” from unauthenticated users because we do not have any relationship with an unauthenticated user and we have no way to obtain that user’s consent – affirmative and express or otherwise – prior to collecting the search query."


6. Fraudulent Ad Charges - Almeida sues Google

Google offers advertisers two types of ads. The first is a search ad. When an user uses Google to search for a specific term, Google will display the ads of advertisers who have bid for those particular keywords. The second type of ad is contextual based ads. These ads are shown on third party web sites that have content that matches the keywords bid on by the advertiser. When signing up, the advertiser has to select the maximum daily budget and the maximum CPC bid. The advertiser has two choices "Default CPC bid" and the "CPC content bid". Next to the "CPC content bid" input is the word "optional". According to a lawsuit brought by Almeida advertisers who left the optional content bid section of the form blank believed they were opting out of content advertisement. This expectation was supported by the fact that users were not given the option of opting out of content bids during the advertising campaign creation process. So Almeida claims that Google fraudulently concealed the fact that advertisers would be charged for the third-party content ads even if they did not complete the portion of the sign-up form. He alleges that Google's actions constitute an unfair or deceptive practice within the meaning of California Business and Professions Code sections 172000 et seq.

Maybe the plaintiff should have had a look at the AdWords Help Center? Check out


7. In short

  • According to the U.S. District Court for the District of New Jersey, a trademark placed in a single metatag designed to advertise a company's ability to service a rival's product is nominative fair use (Synscort Inc. v. Innovative Routines Int'l Inc., D. N.J., No. 04-3623, April 30, 2008).

  • According to the U.S. Courts of Appeal for the Tenth Circuit a parody web site does not "use a trademark in commerce" by providing links to other sites with commercial content (Utah Lighthouse Ministry v. Found. for Apologetic Info. Research, 10th Cir., No. 07-4095, May 29, 2008).

  • Hysitron Inc. v. MTS Systems Corp., 2008 WL 3161969 (D. Minn. Aug. 1, 2008): Keyword Advertising is trademark use in commerce!

  • American Airlines Inc. and Google Inc. have settled their Adwords related trademark-infringment lawsuit by the carrier against the search engine. Terms of the dismissal weren’t disclosed in the judge's dismissal order. See Goldman, Eric, American Airlines and Google Settle Keyword Advertising Lawsuit, Technology & Marketing Law Blog

  • The U.S. District Court for the Eastern District of Wisconsin held that a company may proceed with a trademark infringement claim against a company that allegedly resold its products without authorization and purchased keyword ads containing the trademarked terms. (Standard Process Inc. v. Total Health Dis. Inc. E.D. Wis., No. 06-803, June 6, 2008). According to the ruling, defendant has not established that its sales are protected by the nominative fair use doctrine. (A commercial party may be entitled to a nominative fair use defense when it uses a mark holder’s trademark to describe the mark holder’s product provided the commercial party meets the following three requirements: (1) the product or service in question must be one not readily identifiable without use of the trademark; (2) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and (3) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.) Defendant made statements suggesting that it was affiliated with the plaintiff. Documents showed that defendant has reffered to plaintiff's 75th anniversary and described its accomplishments using first-person pronouns "we" and "our". For more information see: Goldman, Eric, Two Regressive Search Engine Advertising Rulings--Standard Process v. Total Health and Finance Express v. Nowcom, Technology & Marketing Law Blog 


8. New in Legal Resources

  • Peguera, Miquel, When the Cached Link is the Weakest Link: Search Engine Caches under the Digital Millennium Copyright Act (May 21, 2008). Journal of the Copyright Society of the U.S.A., Vol. 56, Winter 2009, Available at SSRN:

  • Kumpf, Patrizia / Dippelhofer, Mischa, Google-AdWords zu den Marken der Konkurrenz - legitime Werbung oder Rechtsverletzung?, JurPC Web-Dok. 109/2008

  • Bernreuther, Friedrich, Die suchmaschinenoptimierte Webseite - eine urheberrechtlich geschützte Unlauterkeit mit und ohne Markenverletzung, WRP 2008, 1057-1068

  • Volkmann, Christian, Verkehrspflichten für Internet-Provider, CR 2008, 232-238

  • Lepperhoff, Niels / Petersdorf, Björn, Datenschutz bei Webstatistiken, DuD 2008, 266-269

  • Steidle, Roland / Pordesch, Ulrich, Im Netz von Google. Web-Tracking und Datenschutz, DuD 2008, 324-329

  • Schultz, Dennis / Störing, Marc, Die wettbewerbsrechtliche Beurteilung von Keyword Advertising mit fremden Marken, WRP 2008, 741-749

  • Schirmbacher, Martin, Urteilsanmerkung zu LG Frankfurt - Werbung auf Website mit rechtswidrigen Inhalten, CR 2008, 325-327

  • Knupfer, Jörg, Urteilsanmerkung zu LG Frankfurt - Werbung auf Website mit rechtswidrigen Inhalten, MMR 2008, 348

  • Schack, Haimo, Anmerkung zu OLG Jena - Thumbnails, MMR 2008, 414 - 416

  • Klein, Susanne, Search Engines and Copyright - An Analysis of the Belgian Copiepresse Decision in Consideration of British and German Copyright Law, IIC 2008, 451-483

  • Travis, Hannibal,Opting Out of the Internet in the United States and the European Union: Copyright, Safe Harbors, and International Law (August 12, 2008). Notre Dame Law Review, Vol. 83, No. 4, 2008; Available at SSRN:

  • Ott, Stephan, Luz Verde Para Que Los Motores De Bùsqueda Usen Vistas En Miniatura, El Derecho De Autor 2007, 117-123

  • Ott, Stephan, Die Haftung von YouTube für urheberrechtsverletzende Uploads seiner Nutzer nach US-amerikanischem Recht, GRUR-Int. 2008, 563-569

  • Ott, Stephan, Haftung für Embedded Videos von YouTube und anderen Videoplattformen im Internet, ZUM 2008, 556-564

  • Ott, Stephan, Haftungsrecht im Internet - Ein Ratgeber für Forenbetreiber, ISBN 978-3-638-95271-2, Amazon

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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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