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Update 71: September 20, 2010

1. Legal trouble for YouTube in Germany

The Regional Court of Hamburg declined to issue a preliminary injunction against YouTube which would have forced the site to remove 75 music videos in a conflict with eight royalty collecting bodies (inter alia GEMA, ASCAP, BMI). However, the court also said that the plaintiffs may actually have a right to ask YouTube to remove the unlicensed music videos and that the company indeed has some duty to take care of detecting illegal uploads. The only reason for the dismissal of the suit was that the collecting bodys had known for a long time that the songs were available on YouTube and had not done anything against it. So they only have the opportunity to ask for a ruling in regular proceedings.


So no big surprise, a few days later the Regional Court of Hamburg did issue a preliminary injunction against YouTube in another case brought by  Frank Peterson, a German composer and producer for Sarah Brightman and other artists. YouTube was ordered to pay compensation after users uploaded several videos of performances by Sarah Brightman in violation of copyright laws. Google had unsuccessfully argued that it can't be held responsible for making sure the content users upload is not infringing, and pointed out that it even asks users to confirm that they have the rights to upload the works they're uploading. However, the court claimed that such a requirement doesn't absolve YouTube from liability.


The Regional Court of Hamburg is quite notorious in Germany for its ill considered decisions regarding liability of internet providers. I would not be surprised if the Hamburg Upper Regional Court on appeal will at least not award any damages to the plaintff. The decision clearly is in violation of European law, the E-Commerce-Directive, in this regard. The court concluded that YouTube was treating content uploaded by its users as its own. That leads to a more strenuous duty to check out the content. The court came to the conclusion YouTube did not fulfil this.


2. Germany: Employer may google job applicant

 A proposed law on the regulation of employee privacy in Germany is said to establish an equitable balance between the interests of employees in protecting personal data and the legitimate interests of employers. Under the envisaged law, employers would still be allowed to enter job applicants' names into search engines, but social networks that are used for electronic communication may not be used for research, except for social networks that exist to represent the professional qualifications of their members. It will e.g. be illegal to become a Facebook friend with an applicant in order to check out private details. But if an employer turns down an application with another reasoning it might be difficult to prove that the negative answer was based on Facebook postings.

The draft German law (in German)

Also see: German law bans Facebook research for hiring decisions, Outlaw



3. EU: Consultation on the E-Commerce-Directive

In the context of the application of the E-Commerce Directive of 2000, which harmonised rules on issues such as the transparency and information requirements for online service providers, commercial communications, electronic contracts and limitations of liability of intermediary service providers, the EU Commission commissioned two studies respectively on its economic impact and on the application of the provisions on the liability of internet intermediaries. They were completed in 2007, but published just recently, probably due to "internal differences". There are 25 reports highlighting how the different member states deal with the liability of internet intermediaries.


On August 10, 2010 the Commission launched a consultation on the E-Commerce Directive. Issues covered in the consultation include: commercial communications of regulated professions such as pharmacists and lawyers; the development of the online press, the issue of the liability of internet intermediaries, administrative cooperation, on-line dispute resolution, etc. The result of this work will be taken into account in the Commission’s deliberations with a view to the adoption in the first half of 2011 of a Communication on electronic commerce. This might be the first step towards a revision of the E-Commerce Directive, especially its rules on liability!



4. WIPO Paper on tradmarks and the internet

The WIPO published a 62 pages long paper "Trademarks and the Internet". Part of it deals with the liability of search engines for the sale of trademarks as keywords, in particular with cases in the USA (Nr. 19), the EU (Nr. 20), the United Kingdom (Nr. 29), India (Nr. 30), Israel (Nr. 32), Argentina (Nr. 33) and Australia (Nr. 35). As for the legality of keyword advertising in China e.g. (Nr. 31), the report says:

"In China, two keyword advertising lawsuits, one initiated against Google China, the other against Baidu, have yielded different outcomes. In Google v Guangdong Ganyi Electrical Appliance Co Ltd, the plaintiff’s registered trademark NEDFON was sold by Google as a keyword to a competitor. The Court ruled that the competitor in question had committed trademark infringement. However, Google itself was not held jointly liable for trademark infringement. The Court determined that, although use of a keyword to trigger sponsored links was a form of advertising, Google neither had the ability to check or control the information submitted by the competitor, nor did it have an obligation to examine the legality of that information.

The Google case can be contrasted to the case of Baidu v Shanghai Dazhong House-moving Logistics Co Ltd. Baidu’s bid ranking service allowed Dazhong’s competitors to link their websites to the keywords “Dazhong Banchang”. Here, the Court ordered Baidu to pay compensation to Dazhong."


5. Changes to Google's trademark policy (see Maximilian Schubert, Austrotrabant)


6. The ECJ and the AdWords Cases

Five keyword cases have been transferred to the European Court of Justice. Four rulings are in, one case is still pending.

1. France, Rs. C-236/09, 237/09, 238/09 (ECJ decision, see Update 69); What's new: The French Cour de Cassation took back the case and issued another decision on July 13, 2010. As  a consequence of the ECJ's ruling, the Court referred a previous ruling against Google Inc. back to the Court of Appeal, effectively cancelling an earlier decision in favour of French luxury goods company Louis Vuitton. It is up for the Court of Appeal to examine factual matters more closely now (which the Cour de Cassation can't) with the ECJ's ruling in mind (see: Louis Vuitton says Google trademark fight ain’t over - San Francisco Business Times).

2. Austria, Rs. C-278/08, Bergspechte (ECJ decision).  What's new: The Austrian Supreme court ruled on 21 June 2010 (Case Nr. 17 Ob 3/10f), that even ads that don’t contain the third party trademark may lead to a likelihood of confusion as long as the advertiser does not add appropriate clarifying indications‘. Austrotrabant has more on the case!

3. Netherlands, Rs. C-558/08 , Primakabin / Portakabin (ECJ decision, see Update 70)

4. Germany, Rs. C 91/09 – (ECJ decision)

5. UK, Rs. C-323/09 - Interflora (Reference)


For more information (in German) see: Mehr Fragen als Antworten – die Google France Entscheidung des EuGH zum Keyword Advertising and Fremde Marken als Keywörter – Orakelsprüche des EuGH als Antwort auf biblische Fragen.


7. In short:

  • The Information Commissioner’s Office (ICO) in Great Britain found that Google was wrong to gather data about and from wireless networks when its cars documented the UK's streets for its Street View service, but it is "unlikely" that the company gathered much personal data (Out-Law). "There is also no evidence as yet that the data captured by Google has caused or could cause any individual detriment", a statement said.
    In the USA, t
    he Google Street View lawsuits have been consolidated in the Northern District of California.

  • In the legal struggle between Perfect 10, Inc. and Google, the district court ruled that Google is entitled to immunity on nearly all claims, because the takedown notices provided by Perfect 10 were inadequate. Some of them not even included the specific URL on which the infringing material was located, Perfect 10, Inc. v. Google, Inc., 2:04-cv-09484-AHM-SH (C.D. Cal. July 26, 2010). Also see: DMCA saves Google again—im“Perfect” notices not adequate notice of infringement and Goldman, Google Protected by 17 USC 512(d) for Links to Infringing Content; Perfect 10's Takedown Notices Were Mostly Insufficient, Technology & Marketing Law Blog.
    There is also a case between Google and Perfect 10 in Canada, see Candian court won’t dismiss Perfect 10 infringement suit.

  • French antitrust authorities (Autoritè de la Concurrence) have ruled that Google took advantage of its market position when it terminated location data company Navx’s AdWords account. In February Navx had filed a complaint, alleging that Google has unfairly suspended its contract without notice. Google said the reason for the disappearance of the Navx ads was a change of policy in 2008, when it decided no longer to promote services helping people to avoid speed cameras and fines. Google will appeal the decision. (Wall Street Journal)

  • AdWords Cases in the USA: Ezzo has dropped his lawsuit against Google over AdWords (The dismissal). Jurin's claims for false designation of origin and false advertising on a 12(b)(6) motion were dismissed (Jurin v. Google, 2010 WL 3521955 (E.D. Cal. Sept. 8, 2010)) and Google settled the lawsuits against Dazzlesmile and Flowbee. For more information see: Goldman,  Google Gets Good Results in Three AdWords Trademark Cases (Jurin, Flowbee, Dazzlesmile), Technology & Marketing Law Blog
    And finally a big win for Google: Language software maker Rosetta Stone's trademark infringement lawsuit against Google has been dismissed. The court said that "no reasonable trier of fact could find that Google's practice of auctioning Rosetta Stone's trademarks as keyword triggers to third party advertisers creates a likelihood of confusion as to the source and origin of Rosetta Stone's products."  Rosetta Stone Ltd. v. Google Inc., 1:09-cv-00736-GBL-TCB (E.D. Va.).
    Opinion granting Google's motion to dismiss filed August 3, 2010, 2010 WL 3063152. Order granting Google's motion to dismiss the unjust enrichment claim filed August 2, 2010, 2010 WL 3063857. For more information see: Goldman, Google Gets Complete Win in Rosetta Stone Case, Technology & Marketing Law Blog. Rosetta Stone has filed an appeal.

  • The German OLG Köln (Case Nr. 6 U 48/10) found that the use of the TM-complaint with Google may constitute an act of unfair competition, if as a consequence, resellers of the TM-products are stopped from advertising for them. See: Germany: Use Of Google’s TM-Complaint Procedure by TM-Owner – An Act of Unfair Competition?, Austrotrabant

  • Google Inc.'s methods for recommending websites are being reviewed by Texas' attorney general in an investigation spurred by complaints that the company has abused its power as the Internet's dominant search engine. Foundem, MyTriggers and TradeComet claim that Google is violating antitrust laws because those three sites don't like their rankings. All three allege that they're competitors to Google, and Google is trying to hold them down. (Search Engine Land has more)

  • The Associated Press (AP) has reached a new licensing agreement with Google, which allows Google to host AP content in search results for the Web in general, as well as for Google News,  in return for regular fees. Terms of the deal were not disclosed (Reuters)

  • A study published by the International Journal of Communication ("Trust Online: Young Adults' Evaluation of Web Content.") has found many students only click on websites that turn up at the top of Google searches to complete assigned tasks. Many students think, that web sites placed at the top by Google are credible.

  • According to the German Federal Supreme Court (Case I ZR 123/08) shop owners may only then change the price in their system when the product search engine has adopted the reported change. The defendant in the case had offered an espresso machine via the price search engine He changed the price on his website and simultaneously informed of the new price, but the old one still appeared for three hours. The court deemed such competition to be misleading.

  • Goldman has written about Google House Ads: The Problems With Google House Ads, Technology & Marketing Law Blog

  • An appeals court in Argentina has overturned a lower court's ruling against Google and Yahoo! Argentina that had found the search firms are liable for damaging the 'moral character' of Virginia Da Cunha, a model, singer and actress, by linking to pages that named her and used her image in a sexual context.

    The appeals court ruled Google and Yahoo weren’t liable for defamation for third-party content. Unfortunately for Google and Yahoo, the companies still face more than a hundred similar suits in Argentina (Out-Law / The judgment in Spanish).


8. New in Legal Resources

  • Katzenberger, Paul, Zwangsdigitalisierung urheberrechtlich geschützter Werke in den USA und in Deutschland: das Projekt Google Book Search und § 137l UrhG GRUR Int. 2010, 563-573

  • Spindler, Gerald, Bildersuchmaschinen, Schranken und konkludente Einwilligung im Urheberrecht - Besprechung der BGH-Entscheidung "Vorschaubilder", GRUR 2010, 785-792

  • Fahl, Constantin, Die Nutzung von Thumbnails in der Bildersuche, K&R 2010, 437-441

  • Ott, Stephan, Keyword Advertising mit fremden Marken, K&R 2010, 448-449

  • Ohly, Ansgar, Keyword Advertising auf dem Weg zurück von Luxemburg nach Paris, Wien, Karlsruhe und Den Hagg, GRUR 2010, 776-785

  • Hüttner, Sabine, 1, 2, 3, 4 Eckstein, keiner muss versteckt sein? - Wer sich im Internet präsentiert, muss mit Google rechnen!, WRP 2010, 1008-1016

  • Hoffmann, Christian, Die Verletzung der Vertraulichkeit informationstechnischer Systeme durch Google Street View, CR 2010, 514-518

  • Isbell, Kimberly, The Rise of the News Aggregator: Legal Implications and Best Practices (August 30, 2010). Berkman Center Research Publication No. 2010-10. Available at SSRN:






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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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