Update 59: October 18, 2008
1. First Links & Law Meeting in Munich
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 - www.christian.org.uk". 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
Google in Shift on ‘Abortion’ as Keyword
3. Google Analytics illegal in Germany?
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?
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, 'googles.com' 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, 'googles.com' 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
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.
now must first take the deposition of Rose Hagan, Google's Rule 30(b)(6)
For court documents see: Stelor Productions, Inc. v. Ooogles n Googles et
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
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
For more information see: The
German Town Attempting to Block Google Street View
6. Parker v. Yahoo, Microsoft
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.
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
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
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
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?
Important thumbnail decision in Germany
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
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
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