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:

USA:

• For news on the Soaring Helmet lawsuit see Goldman, Keyword Advertiser Headed to Trial--Soaring Helmet v. Nanal., for news on the Jurin lawsuit (Jurin v. Google, 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. Cal. complaint filed 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 infringement, Binder v. Disability Group, Inc., Case no. cv 07-2760-GHK).

• Goldman discusses a metatag ruling: Southern Snow Mfg. Inc. v. Sno Wizards Holdings, Inc., 2011 WL 601639 (E.D. La. Feb. 16, 2011).

• 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.

• Private Career Training Institutions Agency v. Vancouver Career College, 2010 BCSC 765, aff’d 2011 BCCA 69, see: Google AdWords: Trade-mark issues left for another day - Intellectual Property Alert .

Europe:

• 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:

• Peguera provides an overview of Internet Service Providers' Liability in Spain.

• In January 2011 the book "The Next Digital Decade" has been published. Several articles deal with search engine law:

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

• Personal Web searching in the age of semantic capitalism: Diagnosing the mechanisms of personalisation, Feuz, Martin, Fuller, Matthew, Stalder, Felix. “Personal Web searching in the age of semantic capitalism: Diagnosing the mechanisms of personalisation” First Monday [Online], Volume 16 Number 2 (1 February 2011)

• Do search engines favor their own services in that each search engine links to its own services more often than other search engines do so. See the study: Measuring Bias in "Organic" Web Search.