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Update 69: May 10, 2010

1. The future of Google's image search in Germany

The German Federal Supreme Court has ruled that Google’s image search results  do not infringe copyright law. So displaying thumbnail images is legal! So far we only have the press release. It is not quite clear yet, how the court reached that decision. The main reason for the finding was that the suing artist had not used a simple technical measure (robots.txt) to stop Google from indexing his website. Judging from the press release und contrary to some news reports the court did not find that this amounts to consent to the use of images, but instead came up with another legal twist. But we wont know for sure untill we have the reasoning of the court.


The verdict is also not the end of the discussion about Google Image Search in Germany. There is another case pending in Hamburg, in which a work has been published online by third parties without the artist’s permission. Following the reasoning of the ECJ AdWords decision, the German Federal Supreme Court hinted that Google could only be liable if it was informed of the copyright infringement and did not act.


Also see: Google image search results do not infringe copyright, says German court,; BGH: Google's image search is no copyright infringement, IPKat


2. Privacy Officials criticize Google

Privacy watchdogs from 10 countries (among them UK, France, Germany, Israel, Canada, New Zealand) have written to Google to protest about the company’s disregard for data protection laws. The letter especially criticizes the way Google Buzz was introduced: "...we are increasingly concerned that, too often, the privacy rights of the world’s citizens are being forgotten as Google rolls out new technological applications.  We were disturbed by your recent rollout of the Google Buzz social networking application, which betrayed a disappointing disregard for fundamental privacy norms and laws.  Moreover, this was not the first time you have failed to take adequate account of privacy considerations when launching new services. ... In essence, you took Google Mail (Gmail), a private, one-to-one web-based e-mail service, and converted it into a social networking service, raising concern among users that their personal information was being disclosed.  Google automatically assigned users a network of “followers” from among people with whom they corresponded most often on Gmail, without adequately informing Gmail users about how this new service would work or providing sufficient information to permit informed consent decisions. This violated the fundamental principle that individuals should be able to control the use of their personal information. ... It is unacceptable to roll out a product that unilaterally renders personal information public, with the intention of repairing problems later as they arise.  Privacy cannot be sidelined in the rush to introduce new technologies to online audiences around the world..."


And how should Google behave in the future:

"We therefore call on you, like all organisations entrusted with people’s personal information, to incorporate fundamental privacy principles directly into the design of new online services.  That means, at a minimum:

  • collecting and processing only the minimum amount of personal information necessary to achieve the identified purpose of the product or service;

  • providing clear and unambiguous information about how personal information will be used to allow users to provide informed consent;

  • creating privacy-protective default settings;

  • ensuring that privacy control settings are prominent and easy to use;

  • ensuring that all personal data is adequately protected, and

  • giving people simple procedures for deleting their accounts and honouring their requests in a timely way.

In addition to respecting these broad principles, we also expect all organisations to comply with relevant data protection and privacy laws."


3. Google & Co v. Trademark Owners: The latest AdWord-News from the USA

The Flowbee v. Google case has been transfered from Texas to California by invoking the venue selection clause in the AdWords contract. See Goldman, Eric, Google AdWords Contract Upheld Again, Causing a Venue Transfer in Flowbee v. Google, Technology & Marketing Law Blog. Flowbee International, Inc. v. Google, Inc., 4:10-cv-00668-LB (S.D. Tex. Feb. 8, 2010).


In the Jurin v. Google case, the search engine got a dismissal of several claims.
A violation of 15. U.S.C. 1125 (a) – False Disgnation of Origin occurs, when a producer misrepresents his own goods or services as someone else’s, or, conversely when he represents someone else’s goods and services as his own. The court dismissed the claim:
Here, Defendant has in no way directly represented that it is the producer of the Styrotrim product. To the extent Plaintiff may contend that Defendant has helped “facilitate” confusion of the product with others, such is a highly attenuated argument. Even if one accept as true the allegation that a “Sponsored link” might confuse a consumer, it is hardly likely that with several different sponsored links appearing on a page that a consumer might believe each one is the true “producer” or “origin” of the Styrotrim product. As such, Plaintiff fails to properly plead a false designation of origin claim."

Rather interesting, the court also found that Google’s keyord suggestion tool is covered by 230 CDA: Rather it is a “neutral tool,” that does nothing more than provide options that advertisers could adopt or reject at their discretion, thus entitling the operator to immunity." 

For more information see: Goldman, Eric, Google Dismisses Some Claims in Jurin v. Google and Gets Some Attorneys' Fees, Technology & Marketing Law Blog

Jurin v. Google, Inc., 2010 U.S. Dist. LEXIS 18208 (E.D. Cal. March 1, 2010).


Rescuecom has dropped its keyword-related lawsuit against Google, thus ending the oldest case on the issue. Although it has not won any new concessions from Google, Rescuecom declared victory. "We have obtained two of the three things we initially sought in our complaint against Google." Rescuecom CEO, David Milman said.


1. “Rescuecom's first victory occurred before the United States Court of Appeals for the Second Circuit. That landmark case soundly rejected Google's argument that its auction of Rescuecom's trademark to the highest bidder was not a "trademark use" of Rescuecom's trademark."


2. "Google has recently confirmed to Rescuecom that it has removed Rescuecom's trademark from its Keyword Suggestion Tool." (this probably already happened in 2005...)


3. "The last of the three issues, which remains to be resolved another day, is how trademarks may be used as keywords to trigger the sponsored links themselves in a way that does not confuse consumers." It has probably become hard to press the issue against Google, because Rescuecom is seeking declaratory judgement in another case against Best Buy, that it may use the trademark protected term “geek squad” as a keyword. See Mediapost for details!


Stratton Faxon v. Google, Inc., NNH-CV-09-5031219S (Conn. Superior Ct. dismissed March 8, 2010). On March 8 the court granted a motion brought by Google to dismiss the case. See Goldman, Stratton Faxon v. Google Dismissed, Technology & Marketing Law Blog


Amazon has won a Keyword Lawsuit against Video Professor. Amazon had used “Video Professor” as keyword to trigger its ads. In some occasions clicking on the ad led users to a landing page on which competing Professor Teaches products appeared above and before Video Professor products. Video Professor alleged trademark infringement. But Video Professor was an Amazon vendor and the Vendor Manual, an agreement between Video professor and Amazon, includes the following passage: „Vendor ... hereby grants to a non-exclusive, worldwide, perpetual, and royality-free licence to ... use all trademarks and trade names included in the Product Information”. The court found that the scope of the licence is plain and unambiguous and Amazon’s use of the mark as keyword was within the scope of the licence. So no trademark infringement!

Video Professor, Inc. v ., Inc., 1:09-cv-00636-REB-KLM (D. Colo. April 21, 2010). For more information on the case also see: Goldman, Eric, Amazon Wins Keyword Advertising Suit--Video Professor v. Amazon, Technology & Marketing Law Blog


4. Google & Co v. Trademark Owners: The latest AdWord-News from Europe

4.1. The ECJ ruling - overview

The European Court of Justice (ECJ) released its ruling on two Adwords cases in March (Vuillton and Bergspechte). But that doesn't mean we know if the use of a trademark protected term as keyword is legal or not. Instead we are faced with new questions. I will provide a very short overview, followed by a more indepth analysis from Maximilian Schubert.

One thing is clear: The Court found that Google does not use the mark in the course of trade, even though it clearly draws economic advantage from selling them to advertisers as keywords.

As for the advertiser, the ECJ held that there is "use ‘in relation to goods or services’ within the meaning of Article 9(1)(a) of Regulation No 40/94 where the sign so used is identical with a Community trade mark." But a trademark owner can only exercise his right "in cases in which a third party’s use of the sign affects or is liable to affect the functions of the trade mark. It follows from that case-law that the proprietor of the mark cannot oppose the use of a sign identical with the mark if that use is not liable to cause detriment to any of the functions of that mark. Those functions include not only the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services (‘the function of indicating origin’), but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising."


Adverse effect on the function of indicating origin:

A trade mark owner is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark, in the case where that advertisement does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.


Adverse effect on the advertising function

The ECJ held that keyword advertising has no adverse effect on the advertising function: "It follows from those factors that, when internet users enter the name of a trade mark as a search term, the home and advertising page of the proprietor of that mark will appear in the list of the natural results, usually in one of the highest positions on that list. That display, which is, moreover, free of charge, means that the visibility to internet users of the goods or services of the proprietor of the trade mark is guaranteed, irrespective of whether or not that proprietor is successful in also securing the display, in one of the highest positions, of an ad under the heading ‘sponsored links’." So what? Is there trademark infringement, when the trademark owner has no web site of his own (that affects e.g. 20 % of all companies in Austria), his web site was removed from the Google index because of a violation of their terms or does not show up on the first search result page?

Many questions remain unsolved, but not surpsinigly, Google still claims victory (Official Google Blog): "Today, the Court confirmed that Google has not infringed trade mark law by allowing advertisers to bid for keywords corresponding to their competitors’ trade marks. It also confirmed that European law that protects internet hosting services applies to Google’s AdWords advertising system. This is important because it is a fundamental principle behind the free flow of information over the internet."


Here is what Maximilian Schubert has to say: From Biblical Questions To Delphian Confusion: The ECJ’s Decision On Google France C-236/08


5. In short

  • Based on the forum selection clause, the judge in TradeComet v. Google has dismissed the antitrust lawsuit against Google. So TradeComet can only sue Google in California, not in New York. LLC v. Google, Inc., 2010 U.S. Dist. LEXIS 20154 (SDNY March 5, 2010)

  • The Supreme Court of Canada has agreed to hear the Wayne Crookes case. Crooke alleges that linking to defamatory statements is the same as publishing defamatory material itself. The lower courts did not agree (see Internet link case to go before Supreme Court).

  • Although not even launched yet, there has been quite a controversy about Google Street View in Germany. And there is even more hysteria now: Germany’s data protection chief, Peter Schaar, is horrified by the discovery that Google is also collecting public wireless hotspot data, the MAC addresses and SSIDs. The SSID might be considered personal identifiable data in some circumstances (The SSID is the name given to a network by an operator to distinguish the network from other networks. The operator can choose to use his name as part of the SSID) and German data protection laws might apply, but it is still publicly available data and its recording should be legal. Transferring the data into another country, the USA in particular, might be more problematic. See  New Questions Over Google’s Street View in Germany, New York Times.

  • Italy: On February 23, 2010, the Tribunale Ordinario di Milano convicted three Google employees of violating privacy laws because the company had sought to profit from a video of an autistic boy being bullied by classmates.  In Italy the use of someone’s personal information with the intent of harming them or making a profit is prohibited. And there was, of course, no consent of the bullied schoolboy or his parents. Judge Oscar Magi held that Google had no obligation to monitor all the content uploaded to its platforms, but the company has to make European privacy policies clear to third-party users of its platform. Google said it would appeal the decision.

    For more information see: Italian Judge Cites Profit as Justifying a Google Conviction, New York Times

  • Photographers have decided to file their own lawsuit against Google Book Search (complaint), claiming that Google's Book Search project was undertaken without negotiating rights to their images with the photographers.

    For more information see Photographer groups sue Google over Book Search, CNET News

  • The European Commission has launched a preliminary investigation after the Microsoft-owned business Ciao, and two other small online companies (Foundem, a British price comparison site and, a French legal search engine) claimed that Google is acting anti-competitively.
    Google suggested that Microsoft is behind the complaints. The company also said that it penalizes some, but not all vertical search engines, because they are essentially spam. Foundem claims that Google uses its penalty filter against competing firms.
    For more details see: Companies ask EU Commission to step in on Google search ranking complaint, Out-Law

  • Bev Stayart (know from her lawsuit against Yahoo) is suing Google. The accusations:

    After a searcher types “bev stayart” in the search box, the suggested term “bev stayart levitra” appears in the drop down menue. Levitra is the registered trademark of nationally advertised oral treatment for sexual dysfunction. She also objects against the use of her name as trigger for ads. Unfortunately for her, there is a keyword option called “broadmatching”. It is not very likely that companies bid on the keyword “bev stayart”. They probably bid on “Levitra” and had their ad shown, no matter what other words appeared in the search terms.

    For more information on this lawsuit see: Goldman, Eric, Beverly Stayart Strikes Again! This Time, Stayart Sues Google, Technology & Marketing Law Blog

    Stayart v. Google, Inc., 2:10-cv-00336-LA (E.D. Wis. complaint filed April 20, 2010)

  • A business owner in Sweden is suing Google, alleging that Google provides links to blog post that portray him as a paedophile. He is seeking damages, but it seems he is not very convinced of winning the lawsuit: "I believe the odds are pretty bad. Google has so much money. It is so big. It cannot afford to lose such a trial," he told Dagens Media. "It would mean that Google would have to take responsibility for everything they publish." Also see: Swedish man sues Google for defamation

  • In Italy, the Autorita Garante della Concorrenza e del Mercato opened an investigation against Google based on complaints that the company abuses its position in the market by keeping its ad rate formula secret.

  • Google filed for a declaratory judgement that it did not violate Blues Destiny copyright by linking to unauthorized copies of Blues Destiny music that was hosted on RapidShare. Google Inc. v. Blues Destiny Records, LLC, complaint, 3:10-cv-01824-JSW

  • The Paris Grand Instance Court (TGI) held that eBay committed trademark infringement and unfair competition by using misspelled versions of trademarks for keywords. The decision is from February 11, 2010 and the court rejected eBay’s request to wait for the ECJ ruling.


6. New in Legal Resources

  • Casarosa, Federica, Privacy in Search Engines: Negotiating Control (November 15, 2009),

  • Peritz, Rudolph J.R. and Miller, Marc, An Introduction to Competition Concerns in the Google Books Settlement. NYLS Legal Studies Research Paper No. 0/10 #23,

  • Malkawi, Bashar, Google’s use of Rescuecom’s trademark as an advertising keyword and the U.S. Federal Trademarks Act, Computer Law & Security Review 2010, 77-89

  • Manne, Geoffrey A. and Wright, Joshua D., Google and the Limits of Antitrust: The Case Against the Antitrust Case Against Google (March 24, 2010). Available at SSRN:

  • Bechtold, Stefan, Optionsmodelle und private Rechtsetzung im Urheberrecht am Beispiel von Google Book Search, GRUR 2010, 282-289

  • Frey, Dieter, Leistungsschutzrecht für Presseverleger, MMR 2010, 291-295

  • Lindner, Christian, Persönlichkeitsrecht und Geo-Dienste im Internet - z.B. Google Street View / Google Earth, ZUM 2010, 292-301

  • Danckert, Burkhard / Mayer, Frank Joachim, Die vorherrschende Meinungsmacht von Google – Bedrohung durch einen Informationsmonopolisten?, MMR 2010, 219-221

  • Föhlisch, Carsten, Anmerkung zu BGH, Versandkosten bei Preissuchmaschinen, MMR 2010, 246-248

  • Burk, Dan L., Cybermarks (May 6, 2010). Minnesota Law Review, Vol. 91, 2010. Available at SSRN:

  • Baars, Wiebke, Keyword Advertising: Aktuelle Signale aus Luxemburg, IPRB 2010, 64-67

  • Ultsch, Michael, Zur Anwendbarkeit der E-Commerce-Richtlinie auf Suchmaschinen, MMR-Aktuell 2010, 302563

  • Ott, Stephan, Die Entwicklung des Suchmaschinen- und Hyperlink-Rechts im Jahr 2009, WRP 2010, 435-462

  • Ott, Stephan / Schubert, Maximilian, Fremde Marken als Keywörter – Orakelsprüche des EuGH als Antwort auf biblische Fragen, MarkenR 2010, 160-166

  • Ernst, Stefan, Google Street View: Urheber- und persönlichkeitsrechtliche Fragen zum Straßenpanorama, CR 2010, 178-184






The Links & Law website is updated regularily, so  check back for updated information and resources about search engine and linking issues.

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Latest News - Update 62

Google wins Street View case in Pennsylvania

Jones Day, Blogshopper settlement

Does Google violate antitrust laws by eliminating competition?

USA: Hyperlinks to Competing Products on web site with mark



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