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Germany: German Federal Court decisions on AdWords

The German Federal court (BGH) has asked the European Court of Justice (ECJ) to decide whether or not the use of a trademark as a Google adword is considered use as a trademark.


At the end of January, the BGH has published its opinion on three appeals.


In the first case a company objected against the use of its trademark "bananabay" as a keyword by one of its competitors. Because German trademark law is based on EU law (First Directive 89/104/EEC of the Council, of 21 December 1988, to Approximate the Laws of the Member States Relating to Trade Marks), the BGH could not decide on its own, especially as the ECJ has already been asked to consider the same issue by a French an a Austrķan court (see: European Court of Justice will hear Google Adwords lawsuit!). It is expected that it will take the ECJ about two years to decide the issue. But the French case, brought by Louis Vuitton, is already pending for eight months. So my guess is, we can expect the final word on adwords at the beginning of 2009. The decision will be crucial for Google and for the keyword advertising business in Europe.


In the second case before the BGH, the plaintiff, PCB Pool, objected against the use of pcb as adword. But according to the BGH there was no trademark infringement. PCB is an acronym of printed circuit board and the keyword used, descriptive. So the BGH overturned a lower court's ruling.


The finding in the third case could be the most interesting one. Beta Layout had complained about the use of its company name as keyword. The protection of company names does not have its roots in EU law, so the BGH could decide the case. According to the press release he found that there was no trademark violation because internet users are capable of distinguishing between ads and normal search results.





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