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:
Keyword Advertiser Headed to Trial--Soaring
Helmet v. Nanal.,
for news on the Jurin lawsuit (Jurin
2:09-cv-03065-MCE -KJN (E.D Cal. Feb. 15,
2011)) see Goldman,
Google Dismisses Some Claims in Jurin v.
Google and Gets Some Attorneys' Fees.
Google faces one more
lawsuit: Pathak v. ICG America, Inc., 5:11-cv-00055-VAP -OP (E.D.
Jan. 6, 2011).
The Central District of
California ruled that a law firm's purchase of a competitor's
trademark as a Google AdWord was "use in commerce" and likely to
cause confusion. The Court awarded damages for willful
Binder v. Disability
Group, Inc., Case no. cv 07-2760-GHK).
discusses a metatag ruling:
Southern Snow Mfg. Inc. v. Sno Wizards Holdings, Inc., 2011 WL
601639 (E.D. La. Feb. 16, 2011).
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;…”
several courts have tried to interpret
last years ECJ rulings
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;
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
The Problem of Search Engines
as Essential Facilities: An Economic & Legal Assessment
Geoffrey A. Manne
Some Skepticism About Search
Search Engine Bias & the
Demise of Search Engine Utopianism
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
and in the USA, the Attorney General George Ipsen reached a
stipulation with Google over the collection of WIFI payload data (press
antitrust law: Last year, several
firms have filed
objections with the EU commission, including Ciao.de, a German
subsidiary of Microsoft, British price comparison site Foundem.co.uk
and France's Ejustice.fr. 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
Also on this topic:
Italy's antitrust authority closed a probe
into whether Google coerced local newspapers into posting
stories on its news site (Money
And finally, New in legal resources:
Stalla-Bourdillon, Sophie, Should Search
engines begin to worry?, Journal of Internet Law 2010, November
Ines, Keyword Advertising - Neue Entscheidungen des EuGH und (k)eine
Änderung in: Geist/Brunschwig/Lachmayer/Schefbeck,
Strukturierung der Juristischen Semantik - Structuring Legal
Philipp, Keyword Advertising bei Google in: Innovation und
internationale Rechtspraxis, Praxisschrift zum 50. Geburtstag
von Wolfgang Zankl, 2009