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Update 68: February 16, 2010

1. Germany: Google hit with antitrust lawsuits

Google has been hit with antitrust complaints in Germany from newspaper and magazine publishers (Federation of German Newspaper Publishers (BDZV) and the Association of German Magazine Publishers (VDZ)) who want the company to pay for using article snippets in its news service and search results. The publishers also complain about a lack of transparency in the way Google presents its search results.

According to Geek Hans-Joachim Fuhrmann, a spokesman for the German Newspaper Publishers Association, said the Web sites of all German newspapers and magazines together made 100 million euros, or $143 million, in ad revenue, while Google generated 1.2 billion euros from search advertising in Germany. “Google says it brings us traffic, but the problem is that Google earns billions, and we earn nothing,” Mr. Fuhrmann said.

Well, sound like the Rupert Murdoch idea: We have no clue how to innovate our business model, so let’s try to “extort” money out of Google.

Ciao claims its contract with Google unfairly limits its own ability to sell advertising and that it lacks transparency because it doesn't give the company the ability to review if ad revenues paid by AdWords are correct.

Euro-Cities objects to Google’s practice of offering free online mapping services. Letting just anyone embed Google maps in their sites is anti-competitive and killing its own business.


For more information see: Pfanner, Eric An Antitrust Complaint for Google in Germany, New York Times



2. Google Tax in France?

The so called Zelnick Report, financed by the French government recommends that big advertising companies like Google and Yahoo be taxed. The tax would kick in anytime an ad is clicked in France regardless of where the company is based. This concept is likely to create  all kinds of legal and technical issues. With the expected revenue of up to $ 28 million France wants to help the struggling music and publishing sector. The Report blames Google for the troubles, arguing the search engine profits from works produced by content providers and doesn’t give anything back.

For more information see:

Sandovai, Greg, France could tax Google to subsidize music, CNet



3. Great Britain: Protection of search engines from liability for copyright infringement

There are discussions in Great Britain about creating a new exemption from copyright law for search engines that create copies of web pages in order to perform their search duties (see Outlaw). The proposed amendment:

"Protection of search engines from liability for copyright infringement


The Copyright, Designs and Patents Act 1988 is amended as follows.


After section 116F (as inserted by section (Compulsory licensing of recorded music to be made available via the internet)) insert—


Protection of search engines from liability for copyright infringement


Every provider of a publicly accessible website shall be presumed to give a standing and non-exclusive license to providers of search engine services to make a copy of some or all of the content of that website, for the purpose only of providing said search engine services.


The presumption referred to in subsection (1) may be rebutted by explicit evidence that such a licence was not granted.


Such explicit evidence shall be found only in the form of statements in a machine-readable file to be placed on the website and accessible to providers of search engine services.


A provider of search engine services who acts in accordance with this section shall not be liable for any breach of copyright in respect of the actions described in subsection (1).""


4. Keyword Lawsuit Morningware v. Hearthware

In Morningware Inc. v. Hearthware Home Products Inc., N.D. Ill, No. 09-4348, 11/16/09, the court relied on Rescuecom Corp. v. Google to hold that Hearthware’s purchase of plaintiffs trademark as keywords was an actionable use in commerce. This behaviour might also have initially confused consumers as to the source of its products.

The text of the ad in question reads: “The Real NuWave ® Oven Pro Why Buy an Imitation? 90 Day Gty.”  Morningware alleges that the topmost placement of Hearthware’s advertisement on the search results page coupled with the “Why Buy an Imitation?” statement demonstrates a false claim of product superiority over Morningware’s products, and that this misleads and/or confuses consumers into “believing that [Morningware]’s products are inferior to Hearthware’s because they are ‘Imitations,’ and thus fakes, of Hearthware’s products, which they are not.” In its decision the court declined to dismiss a product disparagement claim and State Law claims.



5. Borings: 1 US Dollar from Google?

The Third Circuit has reinstated a lawsuit that the Borings filed against Google after a driver for its Street View service took photographs of their home. The court upheld the lower court’s decision tossing most of the claims, but said the court erred on the trespass claim: “The Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple,” the 3rd U.S. Circuit Court of Appeals said. “It was thus improper for the District Court to dismiss the trespass claim for failure to state a claim.” But the Court hinted that Aaron and Christine Boring may only be able to wrest $1 in damages from the search company - unless they can prove that they were actually harmed in the moment the Google driver lingered on their property.

 Boring v. Google Inc., 2010 WL 318281 (3rd Cir. Jan. 28, 2010).



6. German Court Surprisingly Liberal on Derogatory Domains & Likeliness of Confusion Online:

The OLG Braunschweig, which used to be known for its TM-holder-friendly attitude, has recently delivered a very surprising liberal decision concerning the likeliness of confusion online in relation to a criticizing website. Continue reading at Maximilian Schubert's


7. In short

  • And even more Adwords related lawsuits: King Pharmaceuticals, Inc., v ZymoGenetics, Inc., 2009 WL 4931238 (E.D. Tenn. Dec. 10, 2009). For more information see Goldman, Eric, Pharma Company Avoids Injunction By Dropping Competitive Keyword Ads--King v. ZymoGenetics, Technology & Marketing Law Blog.

  • A complaint filed in Wisconsin alleges that purchasing a law firm’s name as keyword violates the privacy rights of the named shareholders of that firm. The claim is based on Wisconsin statute § 995.50 (2)(b), which prohibits "the use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without first having obtained the written consent of the person." Habush v. Canon, Wis. Cir. Ct. No. 09CV018149, 11/18/09

    Rescuecom seeks declaratory judgement that its use of Best Buy’s trademark „geek squad“ is legitimate. It’s the same Rescuecom that is suing Google for trademark infringement because the search engines allows advertisers to buy trademarks as keywords… See Mediapost for details!

  • Shanda Literature Limited (SDL) sued Baidu, China's biggest search engine claiming that its links lead to web sites that offer free ilegal downloads of works written by their contracted writers (Chinadaily).

  • Canadian search engine Groovle has won a domain name dispute with Google. The court held that the name was not similar enough to confuse people and the word 'groovle' was more closely linked to "groovy" or "groove" rather than Google (BBC News).

  • A French appeals court has ruled against Google in a case about Google Suggest. Google has been ordered to remove the word arnaque — which means “scam” — from appearing as a Google Suggest term on searches for the Centre National Privé de Formation a Distance (CNFDI). See Big Mouth Media and Update 65 for information on the first instance decision.

  • In December 2009, Google lost a Book Search lawsuit in France. Here is an english translation of the case!

  • Yahoo has settled a lawsuit by American Airlines about the alleged use of its name to trigger search ads.

  • A new lawsuit over allegedly mismanaged AdWord bids. The plaintiff, Largo Cargo, claims that "Google does not inform ist advertisers that if they leave the CPC content bid input blank, Google will use the advertiser’s CPC bid for clicks occuring on the content network. Google does this despite the fact that ads placed on the content network are demonstrably inferior to ads appearing on search result pages. Because there is no option to opt out of content ads during AdWords registration process, advertisers reasonably believe that by leaving the CPC content bid input blank they can opt out of having their ads placed on the content network."

    Largon Cargo v. Google


8. New in Legal Resources

  • Viefhues, Martin, Markenrecht und Google AdWods: Ist die Werbefunktion der Marke die Lösung?, GRUR-Prax 2009, 28

  • Ruessmann, Laurent / Melin, Hanne, Ode to the Digital Single Market: And the Google AdWords case plays a part, CRI 2009, 161-165

  • Batalla, Enrique, Sanmartìn, Marìa Jesùs, Lights and Shades on the Future of Keyword Advertising, CRI 2009, 165-169

  • Rauer, Nils, Das Google Book Settlement 2.0, K&R 2010, 9-15

  • Auer-Reinsdorff, Astrid, Affiliate-Marketing und Suchstichwörter, ITRB 2009, 277-280

  • Kenneddy, Charles, FTC Presses ist Attack on Behavioral Advertising, CRI 2009, 180-183

  • Seidel, Janine / Nink, Judith, Personensuchmaschinen, CR 2009, 666-671

  • Zeck, Keven, Referential Fair Use & Keyword Advertising: The Necessity of Product Placement to our Domestic System of Free-Market Enterprise, 44 Gonz. L. Rev. 519 2008-2009

  • Mercadante, Joseph M., What is Google's Reputation Score? A Method for Modified Self-Regulation of Search (2008). Available at SSRN:

  • Ventose, Eddy D., Search and You Will Find: Google AdWords and Trade Mark Protection (January 12, 2010). Journal of Intellectual Property Law and Practice, 2010. Available at SSRN:

  • Lee, Edward, Technological Fair Use (January 3, 2010). Southern California Law Review, Forthcoming. Available at SSRN:

  • Czerniawski, Michal, Responsibility of Bittorrent Search Engines for Copyright Infringements (December 20, 2009). Available at SSRN:






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