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Update 73: March 5, 2011

There have been no reports about key search engine law decisions in January / February 2011. Most case reported are still concerned with the use of trademark protected terms as keywords (or metatags). Let’s start with a quick overview:



  • Microsoft does no longer prevent advertisers in the USA and Canada from booking third party trademarks as keywords on its adCenter platform. The company aligned it’s TM Policy with the TM policy Google adopted in 2009 for the USA & Canada. See Austrotrabant.





  • France: Google France v. Syndicat Francais de la Literie.

  • Legislative action concerning keyword advertising? See the European Parliament resolution of 15 December 2010 on the impact of advertising on consumer behaviour:
    ”Calls on the Commission to explore the various means (whether legislative or not) and ascertain the technical options at European Union level to effectively implement the following measures:
    … - modify the limited liability regime for information society services in order to make the sale by search engines of registered brand names as advertising keywords subject to prior authorisation from the owner of the brand name in question;…”

  • In Germany several courts have tried to interpret last years ECJ rulings with different results. The trademark owner won three times: OLG Braunschweig (24.11.2010, Case Number 2 U 113/08); OLG Düsseldorf (21.12.2010, Case Number I-20 W 136/10) and OLG Frankfurt, (9.12.2010, Case Number 6 U 171/10). Only the LG Berlin found in favour of the advertiser (22.9.2010, Case Number 97 O 55/10). In the long run, these cases will be of minor importance. The future of keyword advertising with trademark protected terms lies in the hands of the German Supreme Court (BGH). The Court had referred several questions to the ECJ in the Bananabay case and after the ECJ’s ruling, the Supreme Court had to make its final decision in the case. And the ruling is in favour of the advertiser. The reasing has not been published yet, but once it has, it will have key influence on all other keyword cases in Germany. The ruling will probably not be in line with the latest decision of Austria’s highest court ruling(Case Nr. 17 Ob 3/10f; see: Austrotrabant).

I want to point you to a few very interesting studies and articles:

CHAPTER 7: Is Search Now an "Essential Facility?"

Dominant Search Engines: An Essential Cultural & Political Facility
Frank Pasquale

The Problem of Search Engines as Essential Facilities: An Economic & Legal Assessment
Geoffrey A. Manne

Some Skepticism About Search Neutrality
James Grimmelmann

Search Engine Bias & the Demise of Search Engine Utopianism
Eric Goldman


Also no major news on Google Street View. In Japan a woman is suing Google because private items on her washing line appear on Google Street View (see CNet), and in the USA,  the Attorney General George Ipsen reached a stipulation with Google over the collection of WIFI payload data (press release).


Google and antitrust law: Last year, several firms have filed objections with the EU commission, including, a German subsidiary of Microsoft, British price comparison site and France's In December the EU Commission opened formal proceedings. A commission statement said: "The opening of formal proceedings follows complaints by search service providers about unfavourable treatment of their services in Google's unpaid and sponsored search results coupled with an alleged preferential placement of Google's own services. This initiation of proceedings does not imply that the Commission has proof of any infringements. It only signifies that the Commission will conduct an in-depth investigation of the case as a matter of priority."

In February 2011, the French Internet company 1plusV Tuesday filed a complaint with the European Commission claiming that Google is abusing its dominant market position by restrictions on Google's AdSense platform that prevent “vertical” search engines from making money. See Out-Law.


Also on this topic:

  • France’s competition watchdog, Autorite de la Concurrence, stated that Google does hold a dominant position in the online advertising market (Press Release).

  • Italy's antitrust authority closed a probe into whether Google coerced local newspapers into posting stories on its news site (Money Control).


And finally, New in legal resources:

  • Stalla-Bourdillon, Sophie, Should Search engines begin to worry?, Journal of Internet Law 2010, November 2010, 3-11

  • Staufer, Ines, Keyword Advertising - Neue Entscheidungen des EuGH und (k)eine Änderung in: Geist/Brunschwig/Lachmayer/Schefbeck, Strukturierung der Juristischen Semantik - Structuring Legal Semantics, 555-569

  • Herrmann, Philipp, Keyword Advertising bei Google in: Innovation und internationale Rechtspraxis, Praxisschrift zum 50. Geburtstag von Wolfgang Zankl, 2009






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