a case in which you consent to the posting of a
picture of you on web site 1 but want a hyperlink to this site from web site 2
removed.
The U.S. District Court for the District of South Carolina
held October 22, 2007 that the creation of a hyperlink pointing to a photo
on a publicly accessible web site is not a misappropriation of the photo (BidZerk
LLC v, Smith, D.S.C., No. 6:06109). Citing United States v. Gines-Perez, 214 F.
Supp. 2d 205 (D. Puerto Rico 2002), the court said that "a claim of privacy is
unavailable to someone who places information on an indisputably public medium,
such as the Internet, without taking any measures to protect the information."
A very reasonable decision, don't you agree! Well same
scenario, other country, other court. The Higher Regional Court in Munich
held that a link in a satirical news article about a "controversial" lawyer leading
to a web site with pictures of him showing him stripped to the waist wearing
paintball battle attire, constitutes an invasion of the personal privacy of the
lawyer concerned. The court dismissed the argument that the lawyer had consented
to the original publication on the web site. The link had rendered the published
images out of context.
The decision has been criticized from several German legal
experts for threatening the "right to link". Following the reasoning of the
Higher Regional Court you better ask for consent before you link to pictures of
persons. They might not like the context you are placing them in....
2. AdWords Lawsuits in Europe
- Where do we stand at the beginning of 2008
Did you completly
loose t
rack what is going on with AdWords related cases worldwide? Me too! No
Links & Law update without reports about new lawsuits. My "AdWords Lawsuit
Worldwide" section had its last complete update in 2005 and is no longer up to
date. In the following weeks I'll try to revamp this section. With this update I
want to summarize the current situation in several European countries:
Germany
Despite several
lower and
higher regional court decisions in Germany there is no legal certainty
yet. The German Federal Court of Justice (BGH) is expected to issue a decision
on AdWords in 2008, hopefully bringing the many year long discussion to an end.
In 2006, the BGH has held that the use of a trademark as a metatag constitutes
trademark infringement. Even if the trademark itself is not displayed there can
be a trademark use. Following the Meta-Tag decision, German courts mainly argue
if metatags and keyword should be treated equal. Finding and reasoning differ.
In my opinion there is no trademark infringement, if the advertisement is
labelled as such and the trademark itself is not displayed in the ad (see Ott,
MMR 2007, 123 f.).
In 2007 the Supreme
Court of Austria held that the use of a trademark as a keyword infringes the
rights of its owner, if the ad appears above the search results (advertisers
can't choose between above and on the right side of the search results...) using
the trademark as header (it is unclear if this citation of the trademark had an
impact on the decision...). The decision has also been criticised for
confounding arguments from trademark and unfair competition law. The court had
reasoned that users could get the wrong impression that the advertiser is
closely related to the owner of the trademark.
Following the
reasoning in the Reed Executive plc v. Reed Business Information decision (for
more informatio
n
see Update 37) it is unlikely that keyword advertising
constitutes trademark infringement or the common law tort of passing off (Please
note: There is no unfair competition law in the UK).
France
1. Advertisers in
France should not use trademark protected terms as keywords. The Court of
Nanterre, the Court of Paris, the Court of Appeal of Versailles - all have found
that advertisers committed a trademark infringement. Only the Court of
Strasbourg (decision of July 20, 2007,
Atrya vs. Google and K par K/Techni
Feneres) has stressed the initial function of a trademark to distinguish a
product or a service and to associate it to a specific origin and found no
trademark infringement. Nethertheless the court deemed the use of the trademark
to be unfair competition (parasitism based on the profiting of the well known
brand of a competitor). So far no French court held the use of trademark
protected keywords to be legal!
2. As for the
liability of search engines, courts in France d
iffer on the reasoning. According
to the Court of Nanterre Google is an active trademark infringer. The mere fact
of suggesting the infringement by using the mark as proposed keyword is enough. The
court of Paris in contrary underlines that Google does not use the trademark for
identical or similar products / services in a commercial manner. So there is no
trademark infringement. But nethertheless Google's conduct was not deemed
legal. Google's liability was based on the common civil principle of fault (Section
1382 of the Civil Code) due to the lack of preliminary control to check whether
chosen keywords do infringe third party rights. The Court of Strasbourg, (decision
of July 20, 2007,
Atrya vs. Google and K par K/Techni Feneres) took into account
technical measures implemented by Google (a filter and links to check third
parties' rights) and excluded Google's liability on all grounds. This is the
most recent decision from France and the first to exclude a search engine from
liability in an Adword related lawsuit! It remains to be seen if other courts
adopt the approach of the Court of Strasbourg.
3. According to the
Cour d'Appel de Paris, French courts have no jurisdiction if the incriminated
ads lead only to websites owned by companies established outside France and
appear only on google.co.uk, google.de and google.ca, but not on google.fr. (decision
of June 6, 2007, Google Inc. and Google France v. Axa et al, CRI 2007, 155 ff.).
Netherlands
According to the
Amsterdam Court of Appeal (Portakabin v. Primakabin, Decision of December 14,
2006) advertisers are allowed to use a trademark as keyword, at least when
- the use is in
connection with the resale of the relevant branded product and
- the link in the
ad leads directly to the subpage on which the branded products are offered for
sale, and not to the homepage.
In April 2007, The Beijing No. 2 Intermediate
People's Court ordered Yahoo! China to
pay about 200,000 yuan (26,000 dollars) in damages for assisting downloads of
unlicensed music in other websites and delete 229 links to free songs. Yahoo China appealed, but the appeal was rejected by the Beijing Higher
People's Court in December 2007,
Haidian People's Court in Beijing has
dismissed a trademark lawsuit filed
against Google. Beijing Gu Ge Technology
sued Google China for trademark
violation, claiming Google's Chinese
name, "Gu Ge", was confusingly similar
to its own name. The court found that
Google China began using the name April
12, 2006, seven days before the other
company registered its name. See
CNet.
Tene, Omer, "What Google Knows: Privacy
and Internet Search Engines" (October
2007). Available at SSRN:
http://ssrn.com/abstract=1021490
Allgrove, Ben, The search engine's
dilemma: implied licence to crawl and
cache?, Journal of Intellectual Property
& Practice, 2007, Vol.2, No. 7, pages
437-438
Givan, Sarah, Using Trademarks as
Location Tools on the Internet: Use in
Commerce?, The ICFAI Journal of Cyber
Law, May 2006, 61-79
Van Asbroeck, Benoit / Cock, Maud,
Belgian newspapers v Google News: 2-0,
Journal of Intellectual Property &
Practice, 2007, Vol.2, No. 7, pages
463-466
Turner, Mark / Callaghan, Dominic, You
Can Look But Don't Touch! The Impact of
the Google v Copiepresse Decision On the
Future of the Internet, E.I.P.R. 2008,
34-38
Newsarchive
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