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Update 59: October 18, 2008

1. First Links & Law Meeting in Munich

Thursday, Oct. 30, will see the first Links & Law regular's table in Munich. Everyone who wants to talk about internet law or search engines is welcome. If you want to attend, just drop me a line!



2. UK: Christian Institute / Google case settled out of court

In March, Google refused an ad from the Christian Institute, arguing it did not allow the advertising of websites with "abortion and religion-related content". The ad in question stated: "UK Abortion law - Key views and news on abortion law from the Christian Institute -". The Institute sued Google in April, saying that its decision violated the Equality Act of 2006 which prohibits discrimination based on religion in providing goods or services.

Instead of fighting the case, Google settled out-of-court and agreed to revise its policy so that religious entitities are now allowed to launch advertising campaigns on abortion.

For more information see: New York Times, Google in Shift on ‘Abortion’ as Keyword



3. Google Analytics illegal in Germany?

According to the district court of Munich website operators are allowed to store the IP adresses of their visitors without violating data protection laws (Outlaw, German court says IP addresses in server logs are not personal data). This is the latest opinion in the ongoing debate throughout the EU, whether IP adresses count as personal data or not. Several privacy activists, the district court of Berlin and the EU Article 29 Working Party (Opinion 4/2007 on the concept of personal data) claim they are; the consequence would be that web site statistic programms, including Google Analytics, are illegal if they store IP adresses.


Thilo Weichert, Privacy official in Schleswig-Holstein already contacted several webmasters to inform them about the illegality of their use of Google Analytics. So far he does not warrant fines (ULD: Google Analytics - Verstoß gegen das TMG?).



4. Googles v. Google

Steven Silvers, is the creator of animated characters known as "Googles," described as "lovable, friendly four-eyed alien creatures that live on the planet of Goo" that are used to "communicate to children in non-violent themes social lessons, conceptual awareness and educational values, and give children of today, visions of tomorrow." Silvers alleges that he developed the Googles concept in the late 1970s, and began using the name as early as the mid-1980s. In 1997, Silvers obtained the Internet domain name, "".

Stelor, now the legal owner of the Googles mark, alleges that the Google search engine (along with its related goods and services) "has become so well-known... that it now overwhelms the public recognition of the "Googles' trademark, domain name, and Website, and is preventing Stelor from flourishing on the Web or entering new markets..." It further claims that "Google's infringing use of the name 'Google,' which is substantially identical to Silvers' 'Googles' mark, has caused, and will continue to cause, 'reverse confusion' in that the consuming public will now falsely believe that Stelor's goods and services, '' domain name, and Website, are connected, affiliated, associated, sponsored, endorsed or approved by Google, and that Google is the source of origin of the 'Googles' concept, books, music, '' domain name, Website, merchandise, and related goods and services..." Stelor now pursues the four-count amended complaint, originally filed by Silvers against Google, alleging trademark infringement under 15 U.S.C. § 1114, unfair competition under 15 U.S.C. §1125(a), unfair competition under Florida law, and "cancellation of Defendant's registration." 


In September 2008 the United States District Court for the Southern District of Florida denied Stelor Productions Inc.'s motion to compel defendan's principals, Sergey Brin and Lawrence Page for deposition. Stelor had claimed that only Page and Brin have knowledge of (1) the background and evidence related to the first commercial use of the Google mark, (2) the Google, Inc. applications for trademark registrations, and (3) the statements made by the Google principals under oath in support of those applications. Stelor now must first take the deposition of Rose Hagan, Google's Rule 30(b)(6) representative.


For court documents see: Stelor Productions, Inc. v. Ooogles n Googles et al, Justia



5. Google Street View - Legal Problems in Germany? 


In the last months Google has been taking photographs for its controversial Street View feature in Germany. Several officials at both state and federal level have issues with the project and a small town council leader Reinhold Harwart "succeeded" in stopping Google in the northwestern German state of Schleswig-Holstein. The town of Molfsee (pop. 5000) announced that Google needed a permit to take pictures. Laws related to traffic and commercial activities in public spaces would apply. "And when they ask for a permit, we will say no", Hawart says. Although the cited laws are pretty much the same throughout Germany, Google announced to stop taking pictures in Schleswig-Holstein only. Google still argues that streets are public property and that no permit is necessary and will probably continue to talk to officials.

Google is expected to start Street View in Germany very soon. Faces of people and license plate numbers caught in the images will be blurred. The Street View button is already enabled in Germany for testing!

For more information see: The Cleveland Leader, German Town Attempting to Block Google Street View


6. Parker v. Yahoo, Microsoft 

Parker claims that by making cached copies of his websites available to their users, both Yahoo and Microsoft republish his works in their entirety without his permission. Accordingly, Parker has brought several claims against both defendants, including direct copyright infringement, contributory copyright infringement and vicarious copyright infringement. Sound familiar?  In Field v. Google, Inc., the United States District Court for the District of Nevada considered a case that is strikingly similar to the present one: Field, an author of copyrighted works published online at his website, sued Google in copyright for creating and storing cached versions of his works as they appeared on his website. Field was also aware that he could have opted out of being included in Google's searches by including "no-archive" HTML "meta-tags" on his web page. Nonetheless, he brought a claim of direct copyright infringement against Google for violating his exclusive right to reproduce and distribute copies of his works. Among other defenses, Google asserted that the plaintiff had impliedly licensed Google to reproduce his work because he had consciously chosen not to include the no-archive meta-tag on the pages of his website. The court concluded that Google had sufficiently established the defense of implied license.

The district court in Parker followed this reasoning. From Parker's silence and lack of earlier objection, the defendants could properly infer that Parker knew of and encouraged the search engines' activity, and, as did the defendants in Field, they could reasonably interpret Parker's conduct to be a grant of a license for that use. 

But in the end the Court did not dismiss the direct copyright infringement claim, because the defandants allegedly have continued to display Parker's works after the commencement of the lawsuit. This might constitute direct infringement, because the licence might have been revoked.

Parker v. Yahoo!, Inc., 2008 U.S. Dist. LEXIS 74512 (E.D. Pa. Sep. 26, 2008)



7. AdWords cases in Germany - Federal Supreme Court decision is imminent

German courts are split in the question whether the use of a trademark protected term as a keyword is an infringement. Four cases (Der BGH und die AdWords-Verfahren) have reached the German Federal Supreme Court (Bundesgerichtshof). At the beginning of October the Court heard oral arguments in three cases. It is not unlikely that the Federal Supreme Court will refer the case to the European Court of Justice in Luxembourg (ECJ). In May the Cour de Cassation (European Court of Justice will hear Google Adwords lawsuit!) and the Austrian OGH (Auch der OGH ruft den EuGH wegen AdWords an!) did the same.

In my opinion the Federal Supreme Court is inclined to decide in favour of the advertisers, but can't reasonably issue a verdict before asking the ECJ.



8. No Thumbnails allowed in Germany - Why don't you use textual descriptions?

The German photographer Michael Bernhard and the artist Thomas Horn won lawsuits against Google for displaying thumbnails images of their works in picture search results. It's not the first decision against thumbnails and probably not the last one. News reports about "The end of Image Search Engines in Germany" are totally exaggerated. The discussion about the legality of thumbnail pictures has been going on for years now in Germany (See Green light for search engines to use thumbnail images? and Important thumbnail decision in Germany). What makes the recent decision especially worse and led to comments in the news like "major step backwards for German ebusiness in general" or "step into the digital stone age" is one comment of the judge. He suggested a picture search that uses textual descriptions of the pictures instead of thumbnails!

The Hamburg court is quite notorious for its internet law decisions (especially in the field of liability of internet forum operators) and was heavily criticized for these in Germany. Some were reversed on appeal. And no surprise: Google will appeal the thumbnail rulings.

The final word on thumbnails will probably come from the Federal Supreme Court. Untill then, don't worry about picture search in Germany. It will continue! 


I don't have the text of the Hamburg decision yet, but will probably write about it in the next update.

Also see: The Standard, Google appeals possible German ban on image search and Deutsche Welle, Google Loses Court Battle Over Image Searches




9. In short 


10. New in Legal Resources

  • Ott, Stephan, Suchmaschinen und Jugendschutz, K&R 2008, 578-585

  • Schirmbacher, Martin / Müßig, Liska, Suchmaschinen und Kartellrecht, IT-Rechtsberater 2008, 207-208

  • Jaeschke, Lars, Zur markenmäßigen Benutzung beim Keyword-Advertising, CR 2008, 375-380

  • Leistner, Matthias / Stang, Felix, Die Bildersuche im Internet aus urheberrechtlicher Sicht, CR 2008, 499- 507

  • Denis-Leroy, Laurence, Liability for Adwords Services in France, CRI 2008, 108-112




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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