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Special Coverage : Trademark protected terms as keywords / AdWords Lawsuits Worldwide - Google Print

 

Update 63: May 29, 2009

1. USA: Suit over AdWords budget limits ends with settlement

A class action law suit against Google will only make lawyers rich and leave advertisers with advertising credit. Want proof? Google has settled a lawsuit filed by advertisers (CLRB Hanson Industries of  Minnesota and Howard Stern of New Jersey) who claimed they were charged for more ads through the AdWords system than they had agreed to pay. The lawsuit, filed in 2005 in Santa Clara Superior Court in California, sought damages, restitution, and injunctive relief to remedy Google’s practice of (1) charging its AdWords advertisers up to 120% of their per day daily budget on any given day (Plaintiffs’ “120% claims”); and (2) charging AdWords customers who paused their campaigns more than their per day Daily Budget times the number of days their campaigns were not paused during the billing period.

Under the terms of the proposed Settlement Agreement, Google has agreed to pay $20,000,000 in a combination of cash and AdWords Credits. Both plaintiffs will receive $20,000; Google agreed to pay their lawyers more than $5 million. Other affected advertisers will get AdWords credits. Google argued that it had only overcharged advertisers to make up for days when it under-delivered ads, but still chose to end the litigation with a settlement. A spokesman said: “Google believes the claims are without merit, but we are pleased to have the litigation behind us and to move forward with our business objectives.”

CLRB Hanson Industries v. Google, 5:05-cv-03649-JW (settlement papers filed March 26, 2009).

For more information see: Goldman, CLRB Hanson v. Google Preliminarily Settles for $20M, Technology & Marketing Law Blog

2. Second Circuit decision on "Use in Commerce"

In a long awaited decision, the Second Circuit reversed a lower court’s dismissal of a case brought by Rescuecom against Google. Rescuecom alleged trademark violation, because Google - through its Keyword Suggestion Tool - had recommended that a Rescuecom competitor use Rescuecom’s trademark as a keyword. The district court had dismissed the case, accepting Google’s argument that its use of Rescuecom’s trademark was internal and not an infringing “use in commerce.”

So far every single district court outside of the 2nd Circuit found that the purchasing of a competitor’s keyword to trigger ads at least constitutes "use in commerce". Every district court in the 2nd Circuit found otherwise, believing this opinion was compelled by the Second Circuits holding in 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir.192005) (“1-800”). But the 2nd Circuit found these cases to be materially different. In 1-800, the search term that was alleged to trigger the pop-up ad was the plaintiff’s website address, not its mark. Also, the advertiser could not purchase keywords to trigger their ads. Instead they could only choose a category. Google on the contrary, had recommended its advertisers the Rescuecom trademark through its Keyword Suggestion Tool and sold it as a keyword.

 The case is now going back to the trial court. Rescuecom still has to prove that Google's use of the trademark in its AdWords program causes likelihood of confusion or mistake.

Also see:

 

3. Google allows companies to use a rival's trade mark as a keyword in 190 countries

Google has modified its AdWords trademark policy to allow bidding on trademarked terms in 190 new countries. The policy is in line with the same trademark policy that applies in the United States, Canada, United Kingdom and Ireland. As of June 4th, Google will no longer investigate complaints relating to the use of trademarks as keywords by AdWords advertisers. This means that in the affected regions (a full list can be found here), a company advertising on Google will be able to select trademarked terms as keywords, and a user searching with a trademarked keyword may see a greater number of relevant ads in the sponsored links section.

The countries that this trademark policy does not apply to are Australia, Cyprus, Hungary, New Zealand, South Korea, Austria, Czech Republic, Iceland, Norway, Spain, Bahamas, Denmark, Italy, Poland, Sweden, Belgium, Finland, Lithuania, Portugal, Switzerland, Brazil, France, Luxembourg, Romania, Taiwan, Bulgaria, Germany, Macau, Slovakia, China, Greece, Netherlands, and Slovenia.

Also see: Google further liberalizes its Adwords’s Trademark policy in 190 countries, Austrotrabant’s Blog

 

4. Google allows trademarks in text of US ads

Starting June 15, 2009, Google will allow advertisers to use trademarks in the ad text, even if they don't own that trademark or have explicit approval from the trademark owner. But it is necessary that they sell the brand. Comparative advertising will still not be permissible. The change will only apply in the U.S. See  the Google Blog and Outlaw.

 

5. New AdWord and Metatag decisions and cases in the USA and Germany

 

In short

  • Still no luck for the Boring's against Google Street View. Their motion for reconsideration has been denied (Boring v. Google Inc., 2009 WL 931181 (W.D. Pa. April 6, 2009)). See Goldman, Boring v. Google Reconsideration Motion Denied, Technology & Marketing Law Blog
  • According to a complaint filed March 17, 2009 with the Federal Trade Commission by the Electronic Privacy Information center Google has not implemented adequate privacy and network security protections for its cloud computer services like Google Docs or GMail (complaint)
  • The US Department of Justice has launched an inquiry into the deals that Google set up with authors and publishers with its Google Book Search and implications of antitrust. Meanwhile, the US court overseeing that settlement has extended the deadline for objections to the deal or for authors to opt out of it on behalf of their works by four months. The new deadline is September 4, 2009 and the Fairness Hearing is scheduled for October 7, 2009. See Google's book deal faces competition law complaint, Out-Law
 

New in Legal Resources

  • Hoofnagle, Chris Jay, Beyond Google and Evil: How Policy Makers, Journalists and Consumers Should Talk Differently About Google and Privacy (April 6, 2009). First Monday, Vol. 14, No. 4-6, April 2009. Available at SSRN: http://ssrn.com/abstract=1380702
  • Samuelson, Pamela, Legally Speaking: The Dead Souls of the Google Booksearch Settlement (April 16, 2009). Communications of the ACM, Vol. 52, July 2009. Available at SSRN: http://ssrn.com/abstract=1387782
  • Edwards, Eli, Stepping Up to the Plate: The Google-Doubleclick Merger and the Role of the Federal Trade Commission in Protecting Online Data Privacy (April 25, 2008). Available at SSRN: http://ssrn.com/abstract=1370734
  • Klett,  Alexander, AdWord-Werbung unter Verwendung fremder Kennzeichen - markenrechtsverletzend?, K&R 2009, 317-320
  • Ott, Stephan, Datenschutzrechtliche Zulässigkeit von Webtracking?, K&R 2009, 308-313
  • Ott, Stephan, Die Entwicklung des Suchmaschinen- und Hyperlink-Rechts im Jahr 2008, WRP 2009, 351-372
  • Meyer, Sebastian, Aktuelle Rechtsentwicklungen bei Suchmaschinen im Jahre 2008, K&R 2009, 217-225
  • Dietrich, Florian, Anmerkung zu OLG Stuttgart - Snippets, CR 2009, 188-189
  • Jotzo, Florian, Gilt deutsches Datenschutzrecht auch für Google, Facebook & Co. bei grenzüberschreitendem Datenverkehr?, MMR 2009, 232-237
  • Rath, Michael / Swane, Torben, Google Buchsuche - digitale Weltbibliothek und globale Buchhandlung, K&R 2009, 225-228
  • Viscounty, Perry / Barry, Jennifer / Olseon, Christopher, Trademark as Keyword: It's use, but is it confusing?, Electronic Commerce & Law Report 2009, 564-569

     

Update 62: March 29, 2009

1. Google wins Street View case in Pennsylvania
A judge has dismissed a lawsuit filed by a Pennsylvania family against Google. Plaintiffs had alleged invasion of privacy, trespass and unjust enrichment, because Google had published photos of their residence in its Street View feature. The street, in which the home of the plaintiffs is located is marked as "Private Road". Aaron and Christine Boring sued for compensatory and punitive damages, seeking more than 17.000 $.

The judge dismissed the invasion of privacy claim, because he saw no facts that were sufficient to establish that the intrusion could be expected to cause "mental suffering, shame or humiliation to a person of ordinary sensibilities." "While it is easy to imagine that many whose property appears on Google's virtual maps resent the privacy implications, it is hard to believe that any – other than the most exquisitely sensitive – would suffer shame or humiliation", the judge said. He deemed the contended suffering to be less severe because plaintiffs had failed to take readily available measures to protect their own privacy. They could have used a procedure provided by Google to remove the images from Google Street View. Unfortuantely the judge did not tell, why the plaintiffs could be refered to use Google's opt-out system, if the defandant was in fact violating their privacy rights. Seems to me like a circular argument.

As for the other claims, plaintiffs failed to allege a duty of care, that Google could have violated. They also could not support their contention that their property decreased in value.

So, according to the judge, the plaintiffs have failed to state a claim under any count.

The couple already aksed the judge to reconsider their dismissed lawsuit. Some excerpts from their motion for reconsideration:

"This case is about every little guy, once again being trampled upon by the big shoe of big business. With nowhere to turn but the American Courts, he is cast away to endure the pinpricks of trespass that bleed our American liberty to death. Whether the trespass is by a foreign king, or the royalty of big business, does not matter. The Borings, such as our American forefathers in millennia past, are entitled to proclaim, 'Google, Don't Tread On Me.'"

"The Borings should not need to post gates and guard dogs, nor should they need to institute batteries of cannons in their driveways. They should have the full power and authority of our American Courts at their defense. But, now, this Court has left the American right of private property helpless, injured, and without remedy."

"This Court tells Google that it is okay to enter onto a person's private property without permission. I would not teach that rule to my child. This Court's ruling makes our private property a Google Slave; our property is no longer our own: it is forced to work for another, against its will, without compensation, for the profit of another. The Federal Court should free slavery, not create it."

"Google's defense is that the grass will stand back up, and there was no gate or guard dog. Or, possibly, that you can pick the fruit off that poison tree by: a) stopping what you are doing; b) going to a computer, if you know how to use one; c) accessing a computer at the cost of doing so; d) accessing the Internet at the cost of doing so; e) researching and becoming familiar with the Google program by going onto their website properties; f) removing the pictures Google acquired while trespassing on your property; and g) not pursuing the happiness you might otherwise be finding. All while they directly and indirectly advertise to you. The more Google injures, the more money they make."

 

2. Jones Day, Blogshopper settlement

What was deemed a rather ridiculous lawsuit, Plaintiff Jones Day claimed that Blogshopper's use of the Jones Day Marks and the links to the web site create the false impression that Jones Day is affiliated with/or approves, sponsors or endorses Defendant's business, which it does not (see Update 60 for details). The parties have reached a settlement. Blockshopper can continue to link to Jones Day's site, but it must use the firm's Web address as the link. So great result for Jones Day: Instead of writing Daniel P. Malone Jr. is an associate in the Chicago office of Jones Day," BlockShopper must now write "Malone (www.jonesday.com/dpmalone) is an associate . . ."  Blockshopper had spent more than $100,000 defending itself against the lawsuit and was not afraid of loosing the lawsuit, but obviously couldn't afford to go on with the defense.

See: Jones Day settles lawsuit against small Internet site, defendants say, Cleveland.com

 

3. Does Google violate antitrust laws by eliminating competition?

Vertical search is an expanding market where a lot of money can be made. The term "vertical search" refers to more or less specialized search engines for specific topics, such as Google News for news or YouTube for videos. There are already more searches conducted at YouTube or eBay than at Yahoo in several countries. TradeComet also operates a specialized search engine for B2B goods and services. To promote its web site TradeComet used the Google AdWords program and was quite successful at the beginning. Officials even meet with Google to further increase the effectiveness of the ad campaigns. In December 2005 Google praised Trade Comet as "site of the week." In May 2006, however, Google raised the minimum bids for keywords on which TradeComet bid. Instead of 5-10 cents, several keywords were only available at a minimum price of 5-10 dollars. These ad rates were way too expensive for the plaintiff to continue promoting itself within Google's online marketing network. So this move strangled plaintiffs primary source of search traffic, resulting in substantial drops in traffic and revenue (about 90%). Google explained to TradeComet that the increase was due to its poor landing page quality.

TradeComet alleges that Google manipulates its auctions to favor certain advertisers like business.com over others. Google establishes minimum pricing thresholds that can differ by advertisers based on criteria , such as "Landing Page Quality", that is exclusively in Google's control. It is impossible to know how Google actually picks the winners and losers of its ad actions. In the eyes of TradeComet officials, Google learned that its search engine was a potential competitor. The lawyers stated that, “Google understood the threat that vertical search engines posed to its business mode.” Hence Google increased the bid rates for advertisement for the company by as much as 10,000 percent.

The suit could be a real danger to Google. So far, no court has said that Google has a monopoly. But the courts only considered an online, not a smaller search advertising market. After the aquisition of DoubleClick Google has strenghtened its position in the online advertising market and remarks by the Federal Trade Commission lead to the conclusion that the relevant market indeed is sponsored search advertising only. And on that market, Google probably has a monopoly share.

Also see: Goldman, Eric, TradeComet Sues Google for Antitrust Violations , Technology & Marketing Law Blog

TradeComet.com LLC v. Google, Inc., 09 CIV 1400 (SDNY complaint filed Feb. 17, 2009).

 

4. USA: Hyperlinks to Competing Products on web site with mark

The U.S. District Court for the Middle District of Pennsylvania held January 12, 2009 that an online company may have initially confused consumers by providing links to its products on a web site despite listing another company as a "featured brand" and denied a motion for summary judgement.

Babyage.com had created a Leachco "featured brand" webpage in 2007. It displayed the "Leachco" trademark and included a section of the page entitled "Pregnancy Pillows". In the text, "Today's Mom Cozy Comfort" and "Serenity Star," denoted
clickable hyperlinks that, when selected, took the viewer to webpages containing non-Leachco products, including BabyAge's Cozy Comfort pillow, a lower-priced competitor of Leachco's Back'n'Belly pillow. Leachco argues that this webpage content constitutes an unlawful "bait and switch" whereby prospective customers are "baited" by Leachco's brand into visiting the Leachco "featured brand" webpage on the BabyAge Website, baited into pursuing a Leachco pregnancy pillow, and then "switched" to non-Leachco pregnancy pillows by the above-mentioned hyperlinks provided on the webpage.

BabyAge.com Inc. v. Leachco Inc., M.D. Pa., No. 07-1600, 1/12/09

 

In short

California is the first state to consider imposing restrictions on internet mapping sites like Google Earth or Microsoft Virtual Earth. With reports in mind that online satellite images were used to plan the attack in Mumbai last year, an introduced bill would make it illegal to post closs-up images of "soft targets" like government buildings, churches, schools and hospitals. For more details see: California lawmaker targets Internet mapping sites, The Mercury News 

The Dutch Supreme Court sent an AdWords case to the European Court of Justice (ECJ). With more than 20 questions on the subject, the court wants to know everything from the ECJ he can possibly say about adwords. For an English translation of the questions see: Portakabin vs. Primakabin: Dutch Supreme Court sends Adword case to ECJ, Class 46

The New York Times and Gatehouse Media settled claims that the news aggregator web site infringes on copyrights by posting news headlines from other sources verbatim (see Update 61 and the settlement order)

The European Union's Article 29 Working Party welcomed calls for common industry standars on search engine data retention policies, that would include efficient anonymisation and a maximum retention period of six months. Currently Microsoft anonymizes data after 18 months, Google after nine and Yahoo after three months. Last year the Working Party issued its "Opinion on data protection issues related to search engines", see Update 56.

 

New in Legal Resources

  • Goldman, Eric,Brand Spillovers. Santa Clara Univ. Legal Studies Research Paper No. 09-01; Harvard Journal of Law and Technology, Vol. 22, 2008. Available at SSRN: http://ssrn.com/abstract=1324822
  • Csillag, Sandra, Der Google-Urheberrechtsvergleich: Wer hat Rechte am digitalen Content?, medien und recht 2009, 23-27
  • Ott, Stephan, Das Internet vergisst nicht - Rechtsschutz für Suchobjekte, MMR 2009, 158-163
  • Ott, Stephan, Die Entwicklung des Suchmaschinen- und Hyperlink-Rechts im Jahr 2008, WRP 2009, 351-372

 

Update 61: February 10, 2009

1. Germany: German Federal Court decisions on AdWords

The German Federal court (BGH) has asked the European Court of Justice (ECJ) to decide whether or not the use of a trademark as a Google adword is considered use as a trademark.

 

At the end of January, the BGH has published its opinion on three appeals.

 

In the first case a company objected against the use of its trademark "bananabay" as a keyword by one of its competitors. Because German trademark law is based on EU law (First Directive 89/104/EEC of the Council, of 21 December 1988, to Approximate the Laws of the Member States Relating to Trade Marks), the BGH could not decide on its own, especially as the ECJ has already been asked to consider the same issue by a French an a Austrían court (see: European Court of Justice will hear Google Adwords lawsuit!). It is expected that it will take the ECJ about two years to decide the issue. But the French case, brought by Louis Vuitton, is already pending for eight months. So my guess is, we can expect the final word on adwords at the beginning of 2009. The decision will be crucial for Google and for the keyword advertising business in Europe.

 

In the second case before the BGH, the plaintiff, PCB Pool, objected against the use of pcb as adword. But according to the BGH there was no trademark infringement. PCB is an acronym of printed circuit board and the keyword used, descriptive. So the BGH overturned a lower court's ruling.

 

The finding in the third case could be the most interesting one. Beta Layout had complained about the use of its company name as keyword. The protection of company names does not have its roots in EU law, so the BGH could decide the case. According to the press release he found that there was no trademark violation because internet users are capable of distinguishing between ads and normal search results.

 

2. USA: Google Not Liable for Fraudulent Ads

In the Goddard v. Google case (see Update 57 for details), District Court Judge Jeremy Fogel in San Jose ruled that the federal Communications Decency Act immunizes Google from liability for allegedly displaying fraudulent ringtone ads created through the AdWords platform. Goddard had claimed that she was billed for a ringtone subscription after entering her cell phone number at a fraudulent web site that she found via an AdWords ad. She sought to hold Google responsible. But the court found that the Federal Communications Act protects Google from any liability for the ads, noting in the written decision, "Providing third parties with neutral tools to create Web content is considered to be squarely within the protections of (the law). Even if a service provider knows that third parties are using such tools to create illegal content, the service's provider's failure to intervene is immunized" so long as it does not encourage or require their users to post actionable information online. Fogel dismissed the case without prejudice, effectively allowing Goddard to file an amended complaint at a later date. Goddard can only win the lawsuit by establishing Google's involvement in creating or developing the AdWords.

 

Goddard v. Google, Inc., 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008).

For more information see Goldman, Eric, Lawsuit Over Google Ads for Mobile Services Dismissed Per 230--Goddard v. Google, Technology & Marketing Law Blog

 

3. GateHouse Media Lawsuit: Don't aggregate our headlines and post snippets of our stories

In a lawsuit filed in U.S. District Court in Boston, GateHouse Media Inc. asked a judge to stop the New York Times Co. from linking to GateHouse articles on Boston.com’s new local advertising-supported “Your Town” sites, claiming its new practice of grabbing headlines from GateHouse Web sites constitutes copyright infringement. Boston.com publishes headlines, the first sentences of many stories and deep links to GateHouse Media articles. GateHouse claims its sites are losing money because people are visiting the individual story pages instead of the home pages of its sites. It wants to block the Times Co. from aggregating its content, receive compensation for losses, punitive damages and reimbursement for legal fees.

While GateHouse might have a point accusing the Times Co. of copyright infringement by reproducing sentences of their articles, some statements in the complaint about the practice of deep linking are pretty much nonsense, e.g. "The user receives no warning or notification that it has been transported to an unaffiliated third-party website, thus exacerbating the potential for confusion as to the source of origin of the repotage and information displayed on the infringing website."

In its response, the NY Times mentions emails from GateHouse officials pointing out that identical activities are clearly fair use. Howard Owens, GateHouse’s director of digital publishing, wrote (page 19): "Also note that headline, a few graphs and a link back to our site isn’t a Creative Commons issue, but a fair use issue, and they would probably win on that one."

 

So here is a deep link to a web site that hosts the complaint: Deep Link to Techdirt! Please note: I'm not affiliated with Techdirt. There will be no further warning that you will leave my web site by clicking on the link. You are all on your own! And please also visit the homepage of Techdirt.

 

A lawsuit by Agence France Presse (AP) against Google News for aggregating headlines and posting excerpts of news articles posed similar questions, but that case settled before trial. Google also struck a licensing agreement with The Associated Press (AP).

 

 

In short

  • The Consumer Watchdog group asked Google to give users the ability to opt out of leaving personal data, such as IP addresses, on Google's servers. Ask.com already provides a service called "AskEraser" that allows users to delete their personal information from the company's systems. (Consumer Watchdog)

  • Yahoo announced that it would retain user search data for three months (down from currently 13 months!), thus exceeding recommendations that have been made by the European Union's Article 29 Data Protection Working Party. In April 2008 the group said that it did not see any reason for storing non-anonymized user data for more than six months. Storing data for more than six months could be a violation of the EU Data Protection Directive (95/46/EC).

  • Ixquick metasearch engine (www.ixquick.com) announced that it has taken a pioneering step and will permanently delete all personal search details gleaned from its users from the log files.

  • According to the U.S. District Court for the Western District of Washington using a competitor's mark in metadata likely confused consumers in violation of the Lanham Act. The "funny thing" about the lawsuit: A disclaimer on the web site of the defandant made clear that the was not affiliated with the mark owner. But: As a result of the disclaimer, a Google search for the trademark caused his site to appear on the first page.This was enough to establish initial interest confusion, the court said. Suarez Corporation Industries v. Earthwise Technologies Inc., W.D.Wash., No. C07-5577, 11/14/08

 

 

New in Legal Resources

  • Wäßle, Florian, Rechtliche Zulässigkeit von Bilder-Suchmaschinen im Internet, K&R 2008, 729-731

  • Kramarsky, Stephen / Siegel, Kara, Examining Online Advertising: Search Engine Keywords and Trademark Use, Journal of Internet Law, 10/2008, 1, 16-24

  • Deva, Surya, Yahoo! for Good and the right to privacy of internet users, Journal of Internet Law, 3/2008, 3-9

  • Hogertz, Alexander, Internet image ruling interpreted, Copyright World, issue 186, 10-11

  • Shemtov, Noam, Searching for the right balance: Google, keywords advertising and trademark use, E.I.P.R. 2008, 470-474

 

Update 60: December 14, 2008

1. Argentina: Google and Yahoo locked in legal battle with celebrities

Martin Leguizamon, 48, a Buenos Aires attorney, has taken on the local versions of Yahoo und Google on behalf of many of Argentina's best-known actors, models, sports personalities and judges. Initially he represented a group of about 70 fashion models and asked the search engines to block all search results with their names with the intent of blocking pornographic web sites that used the models' pictures. He succeeded in getting restraining orders. Yahoo and Google were ordered to censor search results from their Argentine sites for information about the plaintiffs. Then other public figures - including Maradona and the high-profile judge María Servini de Cubría - have sought out the same lawyer to successfully block search results about them as well. In some cases, the restraining orders require Yahoo and Google to censor results for certain URLs or keywords. In other instances they call for broad restrictions such as censorship of defamatory or scandalous material.

Yahoo first tried to satisfy the orders by blocking content on a site-by-site basis. But as the scope of the orders grew, the company couldn't satisfy the courts. The fines pilled up, and Yahoo has resorted to blocking almost all sites involving the celebrities in question. The only exceptions are hyperlinks to major news media sites. If a user enters the name Maradona e.g., he will see a disclaimer in Spanish stating: "Due to a court order requested by private parties, we find ourselves obliged to temporarily suspend all or some of the results related to this search."

So far, Google Argentina isn't filtering as extensively as Yahoo! and hopes for successful appeals and the legislator to change the law.

Also see: Argentine search engines told to block famous names, Outlaw

 

2. Germany: Thumbnail decision revisited

I already mentioned in the last update that the German photographer Michael Bernhard and the artist Thomas Horn have won lawsuits against Google for displaying thumbnails images of their works in picture search results.

I now have the court decision (German):

According to the Court Google infringes the making available right of the copyright owner. The court examines several exceptions to the copyright exclusivity, e.g. the right of citation, but finds that no exception applies.

Earlier court decisions on thumbnails in Germany discussed the possibility of an implied consent by the copyright holder. But this case was different: The picture, which Google used to create the thumbnail, had not been put on the web by the copyright owner and he had also not allowed the reproduction by a third party. So there was no basis for an implied consent.

 

The court then stressed the importance of search engines for the internet (although it said that picture search is not as important as web search), but it also said that it was not up to the court to invent new copyright exceptions. It saw no possibility to say that Google's actions are legal.

 

3. Spain: Google Cache is legal (the Megakini.com-case)

The plaintiff accused Google of copyright infringement by reproducing snippets from his web site in the results page and by making available cached copies of his web site.

As to the snippets, the court (Sentencia de la Audiencia Provincial de Barcelona (Section 15), of 17 September 17, 2008) concluded that they are too short and thus not infringing.

As to the cached copies the court examined the exceptions to the copyright holder's exclusivity. The court doubted that the exception of temporary reproduction (Art. 31 I of the Ley de Propiedad Intelectual / Art. 5 I of the EU Copyright Directive) applies, because the copies Google uses for its service exist for a longer time, even if the original web site has been removed or modified. But the court did not make a final decision on this subject. Instead it looked at the three step test (See e.g. Article 13 of TRIPs. It reads: "Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.") and the US fair use doctrine and found that these principles should also guide the interpretation of the scope of the protection of intellectual property rights in Spain in order to avoid absurd overextensions of the protection of copyright owners. The court than found that the Google Cache is a socially tolerated use and does not do any harm to the copyright holder. But Google has to comply with some basic requirements. Here the court refered to the caching safe harbor in Art. 13 of the E-Commerce Directive, (The caching safe harbor does not apply to the Google cache, but the court assumed that these requirements are also the limits that a cache provider must observe in order to respect the integrity of the work and the author’s right of making available the work). So there is no copyright infringement on the condition that

(a) the provider does not modify the information;

(b) the provider complies with conditions on access to the information;

(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;

(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and

(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.

Quite an interesting ruling. But I doubt that it will get much approval. While the Hamburg court in the thumbnail decision said that it is not the task of a court to invent new exceptions to the copyright holder's exclusivity, the Spanish appeal court did just that by combining fair use principles and requirements of the E-Commerce-Directive.

 

4. Canada: Linking to defamatory content - Crookes v. Wikimedia Foundation

In Crookes v. Wikimedia Foundation, Inc. (B.C. Sup. Ct. Aug. 29, 2008) the Supreme Court of British Columbia had to decide if under Canadian law linking to an article that contains statements alleged to be defamatory, does, by itself, constitute defamation. Liability could only exist if the link publisher made any statement relating to the defamatory material itself, the court said:

"[32] In the present case, although hyperlinks referred the reader to articles now claimed by the plaintiffs to be defamatory, the plaintiffs agree that the defendant did not publish any defamatory content on the p2pnet website itself. The defendant did not reproduce any of the disputed content from the linked articles on p2pnet and did not make any comment on the nature of the linked articles. In these circumstances, a reader of the p2pnet website who did not click on the hyperlinks provided would not have any knowledge of the allegedly defamatory content.

...

[34] I do not wish to be misunderstood. It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written "the truth about Wayne Crookes is found here" and "here" is hyperlinked to the specific defamatory words, this might lead to a different conclusion."

§      The ruling

Also see Neuburger, Canadian Court Rules Linking to Libel Isn't (Necessarily) Libel

 

5. USA: Google Book Search Settlement

Google and The Authors Guild, the Association of American Publishers said that they have settled a book scanning lawsuit for $125 million. The deal, which still needs approval from a federal court in New York, would clear the way for the company to provide easier online access to millions of copyrighted books.

Google began scanning and uploading books four years ago. However, unlike other countries where it only scanned books fallen out of copyright, in the USA it scanned books that were still copyright protected and made them available through its book search program - enraging publishers and authors. Three years ago, the Authors Guild and others filed a class action lawsuit against Google Book Search. As part of the agreement Google will compensate them at a minimum of $60 per work, costing it up to $90m of the $125m deal.

Google:

With this agreement, in-copyright, out-of-print books will now be available for readers in the U.S. to search, preview and buy online — something that was simply unavailable to date. Most of these books are difficult, if not impossible, to find. They are not sold through bookstores or held on most library shelves, yet they make up the vast majority of books in existence. Today, Google only shows snippets of text from the books where we don’t have copyright holder permission. This agreement enables people to preview up to 20% of the book.

What makes this settlement so powerful is that in addition to being able to find and preview books more easily, users will also be able to read them. And when people read them, authors and publishers of in-copyright works will be compensated. If a reader in the U.S. finds an in-copyright book through Google Book Search, he or she will be able to pay to see the entire book online. Also, academic, library, corporate and government organizations will be able to purchase institutional subscriptions to make these books available to their members. For out-of-print books that in most cases do not have a commercial market, this opens a new revenue opportunity that didn’t exist before.

For details of the agreement see the Google Press Release and The End of Snippet View: Google Settles Lawsuit with Book Publishers, New York Times. For German speaking readers see my post: Google Buchsuche - Überblick und erste Analyse des Vergleichs.

The agreement (141-page / 500KB PDF)

 

6. USA: Jones Day v. Blockshopper.com - Hyperlink creates false impression of affiliation?

Blockshopper.com provides information about property transactions. One of their reports state the facts of real estate transactions of Jones Day associates, displays their pictures, and states the associates work for Jones Day. In addition, the report includes links to information about these associates appearing within Jones Day's website. Jones Day sued Blockshopper and alleges trademark infringement! Plaintiff contends Defendant's use of the Jones Day Marks and the links to the web site create the false impression that Jones Day is affiliated with/or approves, sponsors or endorses Defendant's business, which it does not.

Sounds ridiculous! That's pretty much, what the Electronic Frontier Foundation (EFF) is saying about the lawsuit: "some of the most preposterous trademark claims we've ever seen... If Jones Day were correct, no news site or blog could use marks to identify markholders, or links to point to further information about the markholders, without risking a lawsuit. But that is not the law, and Jones Day should know it."

 

7. USA: Hyperlink, death threats and violation of the First Amendment

A complaint to the U.S. District Court for the Eastern District of Wisconsin says that the First Amendment permitted plaintiff, Ms. Reisinger, to include on her personal web site a link to the Sheboygan Police Department and that the city's insistance that she remove it was unconstitutional.

The case is quite curious:

Ms. Reisinger was involved in the creation of a web site devoted to recall efforts of Mayor Perez. The mayor noticed that Mr. Reisinger - on her own business homepage - had a link to the City of Sheboygan Police Department. He asked the City Attorney if the link was permissible. The attorney answered that anyone can create a link to someone else's website very easily without the knowledge or consent of the linked party. Nethertheless the assistent to the mayor, indicated the mayor wanted the attorney to issue a cease and desist letter regarding the link. So Ms. Reisinger received such a notice and severed the link. She found the request very silly, but said she wanted to follow the "wish". But then the story really started: The police began an official investigation relative to the linking. Other web sites and blogs started ridiculing Ms. Reisinger. She now retained counsel. As a result the City of Sheboygan indicated that they wanted her to continue to use the link to the Police Department. But now it was too late. Ms Reisinger had already received death threats (she had to install video cameras at home...) and suffered a significant decrease in income. She now sues for compensatory damages in sum of 250.000 dollar and punitive damages.

Reisinger v. Perez, E.D. Wis, No 08-cv-00708, complaint filed 8/20/08

 

In short:

 

 

New in legal resources

§      Fischman Afori, Orit, Implied License - An Emerging New Standard in Copyright Law (September 10, 2008). Santa Clara Computer and High Technology Law Journal, Vol. 25, 2008, available at SSRN: http://ssrn.com/abstract=1266083

§      Möller, Mirko, Die Nichtbenutzung einer nicht sichtbaren Marke, MarkenR 2008, 386

§      Schmelz, Christoph, Keyword-Advertising als Markenverletzung - Ende der Diskussion oder Diskussion ohne Ende?, MarkenR 2008, 196-199

§      Pollock, Rufus,Is Google the Next Microsoft? Competition, Welfare and Regulation in Internet Search (September 9, 2008). Available at SSRN: http://ssrn.com/abstract=1265521

§      Goryunov, Eugene, All Rights Reserved: Does Google's 'Image Search' Infringe Vested Exclusive Rights Granted Under the Copyright Law?(2008). John Marshall Law Review, Vol. 41, No. 2, 2008. Available at SSRN: http://ssrn.com/abstract=1268571

§      Munir, Abu Bakar / Teh, Tai Yong, Googling Data Protection: Don't be evil, C.T.L.R. 2008, 183-190

§      He, Huaiwen, Safe harbor provisions of Chinese law: How clear are search engines from liability?, Computer Law & Security Report 2008, 454-460

§      Peguera, Miquel, I just know that I (actually) know nothing: Actual knowledge and other problems in ISP liability case law in Spain, EIPR 2008, 280-285

Links & Law Regular's table in Munich

Thursday, Feb. 12, 2009 will see the third Links & Law regular's table in Munich. Everyone who wants to talk about internet law or search engines is welcome. If you want to attend, just drop me a line!

 

Update 59: October 18, 2008

1. First Links & Law Meeting in Munich

Thursday, Oct. 30, will see the first Links & Law regular's table in Munich. Everyone who wants to talk about internet law or search engines is welcome. If you want to attend, just drop me a line!

 

 

2. UK: Christian Institute / Google case settled out of court

In March, Google refused an ad from the Christian Institute, arguing it did not allow the advertising of websites with "abortion and religion-related content". The ad in question stated: "UK Abortion law - Key views and news on abortion law from the Christian Institute - www.christian.org.uk". The Institute sued Google in April, saying that its decision violated the Equality Act of 2006 which prohibits discrimination based on religion in providing goods or services.

Instead of fighting the case, Google settled out-of-court and agreed to revise its policy so that religious entitities are now allowed to launch advertising campaigns on abortion.

For more information see: New York Times, Google in Shift on ‘Abortion’ as Keyword

 

 

3. Google Analytics illegal in Germany?

According to the district court of Munich website operators are allowed to store the IP adresses of their visitors without violating data protection laws (Outlaw, German court says IP addresses in server logs are not personal data). This is the latest opinion in the ongoing debate throughout the EU, whether IP adresses count as personal data or not. Several privacy activists, the district court of Berlin and the EU Article 29 Working Party (Opinion 4/2007 on the concept of personal data) claim they are; the consequence would be that web site statistic programms, including Google Analytics, are illegal if they store IP adresses.

 

Thilo Weichert, Privacy official in Schleswig-Holstein already contacted several webmasters to inform them about the illegality of their use of Google Analytics. So far he does not warrant fines (ULD: Google Analytics - Verstoß gegen das TMG?).

 

 

4. Googles v. Google

Steven Silvers, is the creator of animated characters known as "Googles," described as "lovable, friendly four-eyed alien creatures that live on the planet of Goo" that are used to "communicate to children in non-violent themes social lessons, conceptual awareness and educational values, and give children of today, visions of tomorrow." Silvers alleges that he developed the Googles concept in the late 1970s, and began using the name as early as the mid-1980s. In 1997, Silvers obtained the Internet domain name, "googles.com".

Stelor, now the legal owner of the Googles mark, alleges that the Google search engine (along with its related goods and services) "has become so well-known... that it now overwhelms the public recognition of the "Googles' trademark, domain name, and Website, and is preventing Stelor from flourishing on the Web or entering new markets..." It further claims that "Google's infringing use of the name 'Google,' which is substantially identical to Silvers' 'Googles' mark, has caused, and will continue to cause, 'reverse confusion' in that the consuming public will now falsely believe that Stelor's goods and services, 'googles.com' domain name, and Website, are connected, affiliated, associated, sponsored, endorsed or approved by Google, and that Google is the source of origin of the 'Googles' concept, books, music, 'googles.com' domain name, Website, merchandise, and related goods and services..." Stelor now pursues the four-count amended complaint, originally filed by Silvers against Google, alleging trademark infringement under 15 U.S.C. § 1114, unfair competition under 15 U.S.C. §1125(a), unfair competition under Florida law, and "cancellation of Defendant's registration." 

 

In September 2008 the United States District Court for the Southern District of Florida denied Stelor Productions Inc.'s motion to compel defendan's principals, Sergey Brin and Lawrence Page for deposition. Stelor had claimed that only Page and Brin have knowledge of (1) the background and evidence related to the first commercial use of the Google mark, (2) the Google, Inc. applications for trademark registrations, and (3) the statements made by the Google principals under oath in support of those applications. Stelor now must first take the deposition of Rose Hagan, Google's Rule 30(b)(6) representative.

 

For court documents see: Stelor Productions, Inc. v. Ooogles n Googles et al, Justia

 

 

5. Google Street View - Legal Problems in Germany? 

 

In the last months Google has been taking photographs for its controversial Street View feature in Germany. Several officials at both state and federal level have issues with the project and a small town council leader Reinhold Harwart "succeeded" in stopping Google in the northwestern German state of Schleswig-Holstein. The town of Molfsee (pop. 5000) announced that Google needed a permit to take pictures. Laws related to traffic and commercial activities in public spaces would apply. "And when they ask for a permit, we will say no", Hawart says. Although the cited laws are pretty much the same throughout Germany, Google announced to stop taking pictures in Schleswig-Holstein only. Google still argues that streets are public property and that no permit is necessary and will probably continue to talk to officials.

Google is expected to start Street View in Germany very soon. Faces of people and license plate numbers caught in the images will be blurred. The Street View button is already enabled in Germany for testing!

For more information see: The Cleveland Leader, German Town Attempting to Block Google Street View

 
 

6. Parker v. Yahoo, Microsoft 

Parker claims that by making cached copies of his websites available to their users, both Yahoo and Microsoft republish his works in their entirety without his permission. Accordingly, Parker has brought several claims against both defendants, including direct copyright infringement, contributory copyright infringement and vicarious copyright infringement. Sound familiar?  In Field v. Google, Inc., the United States District Court for the District of Nevada considered a case that is strikingly similar to the present one: Field, an author of copyrighted works published online at his website, sued Google in copyright for creating and storing cached versions of his works as they appeared on his website. Field was also aware that he could have opted out of being included in Google's searches by including "no-archive" HTML "meta-tags" on his web page. Nonetheless, he brought a claim of direct copyright infringement against Google for violating his exclusive right to reproduce and distribute copies of his works. Among other defenses, Google asserted that the plaintiff had impliedly licensed Google to reproduce his work because he had consciously chosen not to include the no-archive meta-tag on the pages of his website. The court concluded that Google had sufficiently established the defense of implied license.

The district court in Parker followed this reasoning. From Parker's silence and lack of earlier objection, the defendants could properly infer that Parker knew of and encouraged the search engines' activity, and, as did the defendants in Field, they could reasonably interpret Parker's conduct to be a grant of a license for that use. 

But in the end the Court did not dismiss the direct copyright infringement claim, because the defandants allegedly have continued to display Parker's works after the commencement of the lawsuit. This might constitute direct infringement, because the licence might have been revoked.

Parker v. Yahoo!, Inc., 2008 U.S. Dist. LEXIS 74512 (E.D. Pa. Sep. 26, 2008)

 

 

7. AdWords cases in Germany - Federal Supreme Court decision is imminent

German courts are split in the question whether the use of a trademark protected term as a keyword is an infringement. Four cases (Der BGH und die AdWords-Verfahren) have reached the German Federal Supreme Court (Bundesgerichtshof). At the beginning of October the Court heard oral arguments in three cases. It is not unlikely that the Federal Supreme Court will refer the case to the European Court of Justice in Luxembourg (ECJ). In May the Cour de Cassation (European Court of Justice will hear Google Adwords lawsuit!) and the Austrian OGH (Auch der OGH ruft den EuGH wegen AdWords an!) did the same.

In my opinion the Federal Supreme Court is inclined to decide in favour of the advertisers, but can't reasonably issue a verdict before asking the ECJ.

 

 

8. No Thumbnails allowed in Germany - Why don't you use textual descriptions?

The German photographer Michael Bernhard and the artist Thomas Horn won lawsuits against Google for displaying thumbnails images of their works in picture search results. It's not the first decision against thumbnails and probably not the last one. News reports about "The end of Image Search Engines in Germany" are totally exaggerated. The discussion about the legality of thumbnail pictures has been going on for years now in Germany (See Green light for search engines to use thumbnail images? and Important thumbnail decision in Germany). What makes the recent decision especially worse and led to comments in the news like "major step backwards for German ebusiness in general" or "step into the digital stone age" is one comment of the judge. He suggested a picture search that uses textual descriptions of the pictures instead of thumbnails!

The Hamburg court is quite notorious for its internet law decisions (especially in the field of liability of internet forum operators) and was heavily criticized for these in Germany. Some were reversed on appeal. And no surprise: Google will appeal the thumbnail rulings.

The final word on thumbnails will probably come from the Federal Supreme Court. Untill then, don't worry about picture search in Germany. It will continue! 

 

I don't have the text of the Hamburg decision yet, but will probably write about it in the next update.

Also see: The Standard, Google appeals possible German ban on image search and Deutsche Welle, Google Loses Court Battle Over Image Searches

 

 

 

9. In short 

 

10. New in Legal Resources

  • Ott, Stephan, Suchmaschinen und Jugendschutz, K&R 2008, 578-585

  • Schirmbacher, Martin / Müßig, Liska, Suchmaschinen und Kartellrecht, IT-Rechtsberater 2008, 207-208

  • Jaeschke, Lars, Zur markenmäßigen Benutzung beim Keyword-Advertising, CR 2008, 375-380

  • Leistner, Matthias / Stang, Felix, Die Bildersuche im Internet aus urheberrechtlicher Sicht, CR 2008, 499- 507

  • Denis-Leroy, Laurence, Liability for Adwords Services in France, CRI 2008, 108-112

 

Update 58: August 17, 2008

1. Purchased Ads on parked domains

A class-action lawsuit filed in May 2006 against Yahoo! Inc. accused the company of engaging in "syndication fraud" against advertisers who pay Yahoo to display their ads on search results and on the Web sites of partner pages. The suit claims that Yahoo also displayed the ads via spyware and adware products and on so-called "typosquatter" web sites that capitalize on misspellings of popular trademarks or company names.

For more information see the Technology & Marketing Law Blog: Yahoo "Syndication Fraud" Lawsuits--Crafts by Veronica v. Yahoo and Draucker Development v. Yahoo / Search Engine Advertiser Litigation Updates

Now, Google has also been hit with a lawsuit for the alleged sale of "low quality" ads on parked domains and error pages. The complaint alleges  that Google is guilty of "unjust enrichment" by promising high-quality ad placements and then serving a substantial portion of ads on low-quality sites. Plaintiff Levitte claims that 16,3 % of all the clicks in his campaign came from such sites, but not a single one of those clicks led to a conversion. The suit seeks class-action status for everyone in the US with an AdWords account over the last four years.

One week later, online retailer RK West filed a similiar lawsuit against Google. The complaint alleges that the company purchased ads without realizing they would appear on parked domains.

See Levitte v. Google (complaint and Justia page) and RK West v. Google (complaint and Justia page).

 

2. MPAA fights film links sites

The Motion Picture Association of America (MPAA) has filed suits against Fomdb.com and Movierumor.com, alleging contributory copyright infringement and inducement of copyright infringement, because they provide links to copyright-infringing copies of movies.

"These sites contribute to and profit from massive copyright infringement by identifying, posting, organizing, and indexing links to infringing content found on the Internet that consumers can then view on-demand," said an MPAA statement.

Earlier this year, the MPAA settled two similiar cases against Showstash and Cinematube. The defendants admitted that they were liable for infringement. Showstash agreed to a payment of 2.7 million US-Dollar and Cinematube 1.3 million US-Dollar. The ruling in the Cinematube case reads: "Defendant has engaged in contributory copyright infringement and inducement of copyright infringement by actively searching for, identifying, collecting, posting, organizing, indexing, and posting on his website (www.cinematube.net) links to infringing material, which has been posted on thirdparty websites".

 

For more information see:

 

3. Information Commissioner: Street View no violation of privacy laws in Great Britain?

Google is expected to launch its controversial Street View feature in Great Britain later this year. After several complaints from citizens and due to opposition from privacy advocates, the Information Commissioner's Office took a closer look at the service and finally gave it his blessing: "We are satisfied that Google is putting in place adequate safeguards to avoid any risk to the privacy or safety of individuals, including the blurring of vehicle registration marks and the faces of anyone included in Street View images. Although it is possible that in certain limited circumstances an image may allow identification of an individual, it is clear that Google are keen to capture images of streets and not individuals."

Individuals can also complain about identifiable pictures and have them removed.

Google Cars have been spotted in several European countries in the last few months including Spain, Germany, France, Italy and Great Britain.

Also see:

 

4. Sex Selection Ads in India

The advertisement of products and techniques to aid in the selection of an unborn child's sex is an offense under India's "The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act". But Google India, Yahoo India and Microsoft still serve ads that claim to help in the selection of a child's sex. Following a complaint, India's Supreme Court asked the search engines to respond to the charges. 

For more information see:

 

5. Comments on FTC Behavioral Advertising Principles

In December 2007, the Federal Trade Commission released a paper titled "Online Behvioral Advertisement: Moving the Discussion Forward to Possible Self-Regulatory Principles" (See: Self-Regulatory Principles on Behavioral Advertising). It included four proposed principles:

  • transparency and consumer control

  • reasonable security and data retention

  • consent for changes to existing privacy policies

  • consent to using sensitive data for behavioral advertising.

The FTC called for comments and many companies and organisations sent statements (they can be found at http://ftc.gov/os/comments/behavioraladprinciples/index.shtm). The commentators agreed that the principles were a good start for the discussion, but also critized several aspects. Google said the principles are overly burdensome and too broadly defined.

As in Europe, Google sticks to its opinion that the IP adress is not a personally identifying information. The paper does not differentiate between personally identifying information and not personally identifying information.This would be a big problem: Principle 3 e.g. requires affirmative express consent for material changes to an online company's privacy policy. Google has a lot of unauthenticated users. How should they be asked for their consent?

Principle 4 would either require the affirmative consent, or simply prohibit, collection of sensitive personal data for behavioral advertising. Google criticises that "sensitive data" is not defined: ”As a result, Principle 4 would not allow Google to collect a search query for “cancer treatment” or “alcoholics anonymous” from unauthenticated users because we do not have any relationship with an unauthenticated user and we have no way to obtain that user’s consent – affirmative and express or otherwise – prior to collecting the search query."

 

6. Fraudulent Ad Charges - Almeida sues Google

Google offers advertisers two types of ads. The first is a search ad. When an user uses Google to search for a specific term, Google will display the ads of advertisers who have bid for those particular keywords. The second type of ad is contextual based ads. These ads are shown on third party web sites that have content that matches the keywords bid on by the advertiser. When signing up, the advertiser has to select the maximum daily budget and the maximum CPC bid. The advertiser has two choices "Default CPC bid" and the "CPC content bid". Next to the "CPC content bid" input is the word "optional". According to a lawsuit brought by Almeida advertisers who left the optional content bid section of the form blank believed they were opting out of content advertisement. This expectation was supported by the fact that users were not given the option of opting out of content bids during the advertising campaign creation process. So Almeida claims that Google fraudulently concealed the fact that advertisers would be charged for the third-party content ads even if they did not complete the portion of the sign-up form. He alleges that Google's actions constitute an unfair or deceptive practice within the meaning of California Business and Professions Code sections 172000 et seq.

Maybe the plaintiff should have had a look at the AdWords Help Center? Check out http://adwords.google.com/support/bin/answer.py?answer=6276.

 

7. In short

  • According to the U.S. District Court for the District of New Jersey, a trademark placed in a single metatag designed to advertise a company's ability to service a rival's product is nominative fair use (Synscort Inc. v. Innovative Routines Int'l Inc., D. N.J., No. 04-3623, April 30, 2008).

  • According to the U.S. Courts of Appeal for the Tenth Circuit a parody web site does not "use a trademark in commerce" by providing links to other sites with commercial content (Utah Lighthouse Ministry v. Found. for Apologetic Info. Research, 10th Cir., No. 07-4095, May 29, 2008).

  • Hysitron Inc. v. MTS Systems Corp., 2008 WL 3161969 (D. Minn. Aug. 1, 2008): Keyword Advertising is trademark use in commerce!

  • American Airlines Inc. and Google Inc. have settled their Adwords related trademark-infringment lawsuit by the carrier against the search engine. Terms of the dismissal weren’t disclosed in the judge's dismissal order. See Goldman, Eric, American Airlines and Google Settle Keyword Advertising Lawsuit, Technology & Marketing Law Blog

  • The U.S. District Court for the Eastern District of Wisconsin held that a company may proceed with a trademark infringement claim against a company that allegedly resold its products without authorization and purchased keyword ads containing the trademarked terms. (Standard Process Inc. v. Total Health Dis. Inc. E.D. Wis., No. 06-803, June 6, 2008). According to the ruling, defendant has not established that its sales are protected by the nominative fair use doctrine. (A commercial party may be entitled to a nominative fair use defense when it uses a mark holder’s trademark to describe the mark holder’s product provided the commercial party meets the following three requirements: (1) the product or service in question must be one not readily identifiable without use of the trademark; (2) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and (3) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.) Defendant made statements suggesting that it was affiliated with the plaintiff. Documents showed that defendant has reffered to plaintiff's 75th anniversary and described its accomplishments using first-person pronouns "we" and "our". For more information see: Goldman, Eric, Two Regressive Search Engine Advertising Rulings--Standard Process v. Total Health and Finance Express v. Nowcom, Technology & Marketing Law Blog 

     

8. New in Legal Resources

  • Peguera, Miquel, When the Cached Link is the Weakest Link: Search Engine Caches under the Digital Millennium Copyright Act (May 21, 2008). Journal of the Copyright Society of the U.S.A., Vol. 56, Winter 2009, Available at SSRN: http://ssrn.com/abstract=1135274

  • Kumpf, Patrizia / Dippelhofer, Mischa, Google-AdWords zu den Marken der Konkurrenz - legitime Werbung oder Rechtsverletzung?, JurPC Web-Dok. 109/2008

  • Bernreuther, Friedrich, Die suchmaschinenoptimierte Webseite - eine urheberrechtlich geschützte Unlauterkeit mit und ohne Markenverletzung, WRP 2008, 1057-1068

  • Volkmann, Christian, Verkehrspflichten für Internet-Provider, CR 2008, 232-238

  • Lepperhoff, Niels / Petersdorf, Björn, Datenschutz bei Webstatistiken, DuD 2008, 266-269

  • Steidle, Roland / Pordesch, Ulrich, Im Netz von Google. Web-Tracking und Datenschutz, DuD 2008, 324-329

  • Schultz, Dennis / Störing, Marc, Die wettbewerbsrechtliche Beurteilung von Keyword Advertising mit fremden Marken, WRP 2008, 741-749

  • Schirmbacher, Martin, Urteilsanmerkung zu LG Frankfurt - Werbung auf Website mit rechtswidrigen Inhalten, CR 2008, 325-327

  • Knupfer, Jörg, Urteilsanmerkung zu LG Frankfurt - Werbung auf Website mit rechtswidrigen Inhalten, MMR 2008, 348

  • Schack, Haimo, Anmerkung zu OLG Jena - Thumbnails, MMR 2008, 414 - 416

  • Klein, Susanne, Search Engines and Copyright - An Analysis of the Belgian Copiepresse Decision in Consideration of British and German Copyright Law, IIC 2008, 451-483

  • Travis, Hannibal,Opting Out of the Internet in the United States and the European Union: Copyright, Safe Harbors, and International Law (August 12, 2008). Notre Dame Law Review, Vol. 83, No. 4, 2008; Available at SSRN: http://ssrn.com/abstract=1221642

  • Ott, Stephan, Luz Verde Para Que Los Motores De Bùsqueda Usen Vistas En Miniatura, El Derecho De Autor 2007, 117-123

  • Ott, Stephan, Die Haftung von YouTube für urheberrechtsverletzende Uploads seiner Nutzer nach US-amerikanischem Recht, GRUR-Int. 2008, 563-569

  • Ott, Stephan, Haftung für Embedded Videos von YouTube und anderen Videoplattformen im Internet, ZUM 2008, 556-564

  • Ott, Stephan, Haftungsrecht im Internet - Ein Ratgeber für Forenbetreiber, ISBN 978-3-638-95271-2, Amazon

Google Book Search

 

 

Update 57: June 10, 2008

1. European Court of Justice will hear Google Adwords lawsuit!

So far, there have been more than 70 decisions on Adwords in EU member states, more than 30 in France alone. The rulings differ in finding and reasoning. The use of trademark protected terms as keywords may be legal in some member states (e.g. in Great Britain), may be illegal in other member states (e.g. in France and Italy). German courts are split on this question.

It seems that advertisers will finally get some very important advice. The European Court of Justice in Luxembourg will hear a trademark infringement suit concerning Google AdWords! Its decision will probably influence future adwords lawsuits in all 27 member states, because trademark law is harmonised across the EU (see: First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks), and could force Google to change its policy over trademarks and keywords in some member states.

In 2005 Louis Vuitton successfully sued Google; not only for allowing keyword combinations that associate plaintiff's protected marks with terms including "imitation", "fake" and "copies", but also for proposing such terms to would-be advertisers (Louis Vuitton Malletier / Google, Civil Court of Paris (TGI), February 4, 2005). In June 2006 The Paris Court of Appeals agreed with that decision and found Google guilty of trademark counterfeiting and unfair competition.

Google appealed to the Cour de cassation, the main court of last resort in France. The Court decided to ask the European Court of Justice whether the offering of alternative choices of (trademark protected) keywords breaches trade mark laws.

The decision can be found at: http://www.juriscom.net/documents/casscom20080520.pdf (French). For comments see http://www.juriscom.net/actu/visu.php?ID=1069, http://www.nicolas-herzog.net/categorie-10074671.html (both French) and http://www.linksandlaw.de/news1109-cour-de-cassation-eugh-adwords.htm (German)

There have been two more AdWords related court decisions in France this year:

  • Tribunal de Grande Instance Lyon, decision of March 13, 2008 - "Rentabiliweb"

  • Tribunal de Grande Instance Paris, decision of March 14, 2008 - "Citadines"
     

Also see:

2. USA - Court: Keyword Metatags are a poor indicator of relevancy

After more than ten years of metatag cases: The United States District Court for the Eastern District of Wisconsin is the first to realize that keyword metatags don't matter to search engines!

Standard Process, Inc. v. Banks, 2008 WL 1805374 (E.D. Wis. April 18, 2008):

"Like the plaintiff in Promatek, Dr. Banks used Standard Process trademarks in the metatags of his website. However, today “modern search engines make little if any use of metatags.” ... As more and more webmasters “manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy.” Accordingly, search engines today primarily use algorithms that rank a website by the number of other sites that link or point to it."

For more information on the case see: Goldman, Eric, Court Says Keyword Metatags Don't Matter - Standard Process v. Banks, Technology & Marketing Law Blog

 

3. Belgium - Copiepresse v. Google - The copyright battle continues

Back in April 2006 the Belgian newspaper group Copiepresse filed a lawsuit against Google for re-printing parts of their articles and headlines on Google News and caching their web pages. Google lost in 2007, but appealed the decision. For over a year, Google and Copiepresse went into negotiations and tried to find a solution, but it now seems those talks have broken down. Copiepresse wants Google to pay 4 million Euro immediately, and maybe more later. Professor Alain Berenboom of the Free University of Brussels estimates that the losses attributable to Google's activities were between € 32.8 million and € 49.2 million for a single year! I very much doubt that the newspapers really suffered such a loss. Quite on the contrary. Without Google, they probably would have had less visitors and less income from ads. To win the case, Copiepresse has to show that the headlines and extracts are copyright procted and with regard to the caching issue, that Google's behavior amounts to copyright infringement (which is very likely in European countries, because of the lack of a "fair use" defence).

The court case will resume on September 18 to decide if the infringements are valid and whether the damages payment is reasonable.

For more information see: Belgian group seeks up to $77.2 mln from Google, Reuters

 

4. USA - Citysearch faces click fraud lawsuit

Tom Lambotte is suing Citysearch.com, because the advertising company allegedly charged him improperly for "fraudulent clicks". In his view, Cityseach failed to take any significant measures to track or prevent click fraud and fails to adequately warn its existing and potential customers about the existence and prevalance of click fraud. The incident described in the complaint seems to be of minor importance. Between December 11, 2007 and December 25, 2007 Lambotte received a total of nine clicks on his ads, between December 26, 2007 and the end of December his ad received between 12 to 16 porported clicks per day. If this sudden increase of clicks is the result of click fraud, remains to be seen. Even if this is the case, the damage the plaintiff might have suffered, might not be higher than 50 US-Dollars...

Lambotte v. IAC/InterActiveCorp. (Cal. Superior Ct. complaint dated May 27, 2008)

For more information see:

 

5. USA - Hyperlink to child pornography = Distribution?

According to a military appellate court's decision in the USA, the act of distributing a hyperlink to an online source of child pornography does not subject the defendant to criminal liability for distributing the child pornography available at that web site.

P. Navrestad was charged under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000), with distributing and possessing child pornography in violation of the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. §§ 2251-2260 (2000). He had send a hyperlink to a Yahoo! Briefcase during an Internet chat session. The linked to site contained child pornography images. 18 U.S.C. § 2256(8) defines child pornography as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture . . . of sexually explicit conduct, where . . . the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct." "Visual depiction” in turn, “includes . . . data stored on computer disk or by electronic means which is capable of conversion into a visual image.” 18 U.S.C. § 2256(5).

So the key question was whether a hyperlink contains “data stored . . . by electronic means which is capable of conversion into a visual image." The court stressed the fact that a hyperlink only provides the recipient with a path to another website. It does not contain data itself. So the court held that Navrestad did not distribute child pornography. But the decision was a close one, 3:2. In his dissenting opinion, judge Effron wrote: "The recipient’s ability to access and use images transmitted by hyperlink is functionally indistinguishable from the ability to access and use images transmitted as individually saved files."

United States v. Navrestad, No. 07-0199 (C.A.A.F., May 14, 2008).

Also see:

 

6. USA - Google sued over "fraudulent" AdWords (Goddard v. Google)

Jenna Goddard claims she was injured when she provided her cell phone number to an allegedly fraudulent mobile subscription service website and was charged for unwanted mobile content services in form of premium text messages. But instead of suing the subscription service, she went after Google and sued the company. Why? Goddard says that she performed a Google search for "ringtone" and an ad pointed her to the scammy ringtone provider.

In its Content policy Google only allows a ad for a mobile subscription service, if it accurately discloses a host of higly relevant information to consumers, such as the service's price, subscription period and cancellation procedures (for details see http://adwords.google.com/support/bin/answer.py?hl=en&answer=74334). Goddard claims that Google is aware that mobile subscription services frequently do not disclose these terms, but driven by financial motivations does not live up to its contractual obligations not to run ads for these companies. "Fortunately for deceptive mobile subscription services, Google has systematically declined to live up to its contractual obligations, irrespective of its public pronouncements to do so, opting instead to line its own pockets through an 'anything goes' approach to the advertising and sale of mobile content," reads the complaint.

Goddard hopes to have the lawsuit elevated to class status.

Goddard v. Google, Inc., Case No. 108CV111658 (Cal. Super. Ct. complaint dated April 30, 2008). Google's notice of removal to federal court C08 02738 (N.D. Cal. removal notice dated May 30, 2008).

For more information see: Goldman, Eric, Google Sued for Running Ads for "Fraudulent Mobile Subscription Services"--Goddard v. Google, Technology & Marketing Law Blog

 

7. USA - Designer Skin v. S&L Vitamins: Keyword Metatags and Ads No Initial Interest Confusion

S & L Vitamins had used Designer Skin’s trademarks in the metatags and source codes of its websites, and as search-engine keywords, to inform internet consumers who are searching for Designer Skin’s products that those products are for sale on S & L Vitamins’ websites. The United States District Court held that there was no initial interest confusion. It stressed the fact that S & L Vitamins’ use of Designer Skin’s trademarks accurately described the contents of its websites:

"In contrast to the deceptive conduct that forms the basis of a finding of initial interest confusion, S & L Vitamins uses Designer Skin’s marks to truthfully inform internet searchers where they can find Designer Skin’s products. Rather than deceive customers into visiting their websites, this use truthfully informs customers of the contents of those sites. Indeed, in practical effect S & L Vitamins invites Designer Skin’s customers to purchase Designer Skin’s products. The fact that these customers will have the opportunity to purchase competing products when they arrive at S & L Vitamins’ sites is irrelevant. The customers searching for Designer Skin’s products find exactly what they are looking for when they arrive at these sites. S & L Vitamins is not deceiving consumers in any way. Thus, its use of the marks does not cause initial interest confusion."

Designer Skin, LLC v. S & L Vitamins, Inc., 2008 WL 2116646 (D. Ariz. May 20, 2008)

For more information see:

 

8. In short
  • Three French websites have been found guilty of invading an actor's privacy for publishing links to articles containing the offending material. The Paris Tribunal has fined the operators of all three sites. For more information see French sites fined for linking to privacy-invading content, Out-Law.
  • A US court has ordered a company to use 'negative keywords' to avoid being associated with another firm's trade mark. Orion Bancorp Inc. v. Orion Residential Finance LLC, 2008 WL 816794 (M.D. Fla. March 25, 2008). For more information see Goldman, Eric, Injunction Requires Negative Keywords in Future Adwords Campaigns, Technology & Marketing Law Blog.
  • Online retailer Bigreds.com is suing Yahoo Inc. for $1 million, alleging that it was overcharged nearly that amount because it was the victim of click fraud. Reportedly, Yahoo offered Bigreds a $17,000 refund and had admitted that the clicks were invalid. See Computerworld. For court documents visit: http://news.justia.com/cases/featured/new-york/nyedce/1:2008cv01334/279258/.
  • An open letter sent to Google by US consumer and privacy groups urged the company to add a link from its homepage to its privacy policy. In Europe, the Article 29 Working Party also called for a link on the homepage ("Users must be able to easily access the privacy policy before conducting any search, including from the search engine home page"). Google told Out-Law that the company is refusing the request, see Google needs link to privacy policy on homepage, say privacy groups.
  • In October 2007, the Court of Milan held that the use of a trademark protected term as keyword was not trade mark infringement by neither Google nor the advertiser. It was, however, unfair competition by the advertiser (Key 21 v Mulitiutility and Google Italy).

 

New in Legal Resources

If you understand German, check out my article about search engine law 2007 "Die Entwicklung des Suchmaschinen- und Hyperlink-Rechts im Jahr 2007" (published in WRP 2008, 393-413)!

  • Graeber, Christoph / Franz, Cornea, Anmerkung zu OLG Düsseldorf - AdWords, EWiR 2007, 531-532

  • Volke, Claus, Anmerkung zu OLG Köln - AdWords, Mitteilungen deutscher Patentanwälte 2008, 30-34

  • Wechsler, Andrea, Yahoo China erleidet Niederlage, Baidu gewinnt gegen die internationale Musikindustrie, GRUR Int. 2008, 269-270

  • Meyer, Sebastian, Aktuelle Rechtsentwicklungen bei Suchmaschinen im Jahre 2007, K&R 2008, 201-208

 

Update 56: April 15, 2008

1. Abortion and religion-related content is inappropriate, Google says

Ads for non-religious sites with views on abortion? No problem! Adverts for pornographic sites? Sure! But abortion and religion related content? No way! So Google refused to run a pro-life ad for The Christian Institute's website, christian.org.uk, ("UK abortion law - news and views on abortion from the Christian Institute"), because "abortion and religion-related content" is "inappropriate content" according to Google's policy.

Lawyers for the Institute say this is unlawful discrimination under the Equality Act 2006. They demand that Google change its policy or face legal action. 


2. German Jewish Group Sues Google over YouTube
The Central Council of Jews in Germany filed a temporary injunction March 20, 2008, against Google in Hamburg District Court. The Jewish group demands that Google pull hate videos from its YouTube subsidiary. Among the offending videos was one in which a photo of the late president of the Central Council, Paul Spiegel, was burned against a background of swastikas. According to Business Week, Stephan Kramer, the general secretary of the Central Council of Jews explained the move: "The radical right-wing scene is using YouTube, massively, as a platform. We are accusing Google, with its YouTube video platform subsidiary of being an accomplice to inciting racial hatred and discrimination."

 

3. Self-Regulatory Principles on Behavioral Advertising

In December 2007, the Federal Trade Commission (FTC) released a set of proposed principles to guide the development of self-regulation in the area of online behavioral advertising. Behavioral advertising means the tracking of a consumer’s activities online – including the searches the consumer has conducted, the web pages visited, and the content viewed – in order to deliver advertising targeted to the individual consumer’s interests. One proposal is aimed at more transparency and consumer control:

"Every website where data is collected for behavioral advertising should provide a clear, concise, consumer-friendly, and prominent statement that

(1) data about consumers' activities online is being collected at the site for use in providing advertising about products and services tailored to individual consumers’ interests, and

(2) consumers can choose whether or not to have their information collected for such purpose. The website should also provide consumers with a clear, easy-to-use, and accessible method for exercising this option."

The guidelines are partly intended to adress concerns over the Google-DoubleClick deal. So far Google is not engaged in behavioral advertising, but declines to say whether the merger will facilitate respective plans.

 Also see:

  • Alexis, Alexei, Behavioral Advertising - Search Engine Firms Expected to Face Continued Hill Scutiny, Electronic Commerce & Law Report 2008, 121-123

 

4. Sponsored Links decision in the U.K.

Google changes its trade mark policy in the UK and in Ireland: The use of trade marked terms to trigger ads will be allowed, starting May 5. This move brings the policy in line with the one in the US and Canada.

Google might have announced the change because of a recent High Court Ruling that cleared Yahoo of trademark infringement. Victor Wilson, owner of a London based catering business had sued Yahoo, after discovering that typing Mr Spicy, a name that he registered as a Community Trade Mark, triggered sponsored links for Sainsbury's supermarket. Yahoo asked for summary judgement, arguing that it had not used plaintiff's trademark, and got it:

"The trade mark in this case is not used by anyone other than the browser who enters the phrase "Mr Spicy" as a search query in the defendants' search engine. In particular, the trade mark is not used by the defendants. The response of the defendants to the use of the trade mark by the browser is not use of the trade mark by the defendants.

That is enough to decide the case in the defendants' favour. But the matter does not stop there. If, by some process of reasoning, one were to hold that the search engine's response to the words used by the browser was, itself, use by the defendants, in my judgment, it is not use of the mark "Mr Spicy". What, instead, is being used is the English word "spicy" as it appears in that phrase."

But please note: The advertiser had used the word "spicy" as keyword, not "Mr Spicy", so its still possible that buying a keyword that matches another firm's trade mark is unlawful in the UK.

Google's decision might be a dangerous one that leads to more lawsuits.

Also see:

Victor Andrew Wilson v. Yahoo! UK Ltd. / Overture Services Ltd., Decision of February 20, 2008

 

5. First Google street view lawsuit in the USA: Boring v. Google

Google allegedly took pictures from what was labeled as “private property” for its Street View Feature. So, Aaron and Christine Boring filed suit in Allegheny County court on April 2, 2008. They are demanding $25,000 to make up for the "mental suffering" and the diminished value of their home. Google claims that this lawsuit is pointless since anyone can ask them to have pictures removed without legal action. You can watch some of the pictures of the property and the complaint here.

Also read: Mr. and Mrs. Boring sue Google over Street View pics - "No one will compromise our privacy but us", The Register

 

6. Article 29 Data Protection Working Party Report: Opinion on data protection issues related to search engines

A report by the European Union's privacy panel, the Article 29 Data Protection Working Party, demands that search engines follow EU privacy regulations, even when the services are headquartered outside the European Union. They should delete personal data held about their users within six months.

Key findings of the report:

  • The Data Protection Directive (95/46/EC) generally applies to the processing of personal data by search engines, even when their headquarters are outside of the EEA.

  • Search engines may only process personal data for legitimate purposes and the amount of data has to be relevant and not excessive in respect of the various purposes to be achieved.

  • In view of the initial explanations given by search engine providers on the possible purposes for collecting personal data (e.g. Service improvements, system security, fraud prevention, personalised advertising), the Working Party does not see a basis for a retention period beyond 6 months.... In case search engine providers retain personal data longer than 6 months, they will have to demonstrate comprehensively that it is strictly necessary for the service.... If there is no legitimate ground for processing, or for use beyond the well-specified legitimate purposes, search engine providers must delete personal data. Instead of deletion, search engines may also anonymise data, but such anonymisation must be completely irreversible for the Data Protection Directive to no longer apply.

  • The Working Party finds that the correlation of personal data across services and platforms for authenticated users can only be legitimately done based on consent, after the users have been adequately informed.

  • Users of search engine services have the right to access, inspect and correct if necessary, according to Article 12 of the Data Protection Directive (95/46/EC), all their personal data, including their profiles and search history.

  • Cross-correlation of data originating from different services belonging to the search engine provider may only be performed if consent has been granted by the user for that specific service.

 

7. Important thumbnail decision in Germany

So far, German courts were split on the question, if copyright law allows the creation and display of thumbnail images by picture search engines.

There have been two major decisions, one by the District Court of Hamburg (Case No. 308 O 449/03, full text available at: http://www.linksandlaw.de/urteil73-thumbnails.htm) and the second by the District Court of Erfurt (Case No.: 3 O 1108/05, full text available at: http://www.linksandlaw.de/urteil171-bildersuche-thumbnails.htm).

 The District Court of Hamburg ruled against Google's German news service when it found that thumbnail images, that were displayed beside excerpts from various news stories, were protected under German copyright law and could not be reproduced without permission.

 The District Court of Erfurt argued that webmasters must brace themselves for other users to link to their works. The court stressed the fact that the thumbnails cannot be enhanced into high quality images and that the depiction of thumbnails is beneficial to the copyright holder, because visual search engines help users to locate them on the internet. Page owners had one easy way to prevent their pictures from appearing as thumbnails in search engine results, the court wrote. They can restrict access to the works on their site, e.g. by the use of a robots.txt file.

The plaintiff appealed the decision and the Thuringian Higher Regional Court (decision of February 27, 2008, Case No. 2 U 319/07 - full text in German) did not follow the reasoning of the District Court.

In accordance with prior cases the court found that the creation and display of thumbnail images is not allowed under the exemptions granted by the German Copyright Act. Google also failed to convince the court that the "implied consent" defense applies. In the eyes of the judges, the upload of a work on a web site is not enough to find that the copyright owner agrees to all search engine uses. So thumbnails used by picture search engines violate the German Copyright Act (I don't agree with this result, please see my article Green light for search engines to use thumbnail images?).

But then the court came up with a solution to dismiss the lawsuit. The plaintiff was engaged in search engine optimization. Under these circumstances, the court found that the plaintiff had attracted crawlers and was estopped from raising claims against search engines!

I don't think that it is a good idea to assume that the plaintiff abused her legal rights:

  • The plaintiff had used metatags (the decision only speaks of the keyword metatag - that is useless, if you want to optimize your pages for Google, but the plaintiff might have also used other metatags). Metatags don't "attract" crawlers. They are a way of telling search engines which keywords are relevant for a web site, but they don't influence how often a web page is visited. Metatags are used to increase the visibility of a web site within the (web) search results.

  • The court did not offer a solution what the plaintiff should have done, if she wanted her web site to appear in the web search results, but not in the picture search results. If she had optimized the pictures (which is very difficult to prove), than the reasoning of the court would have been correct, but only then.

  • In my view, it would have been better to consider the search engine optimization under the aspect of "implied consent". The use of the metatags shows that the copyright owner wanted his works to be found. So it would be consequent to assume, he impliedly consents to the necessary copyright uses by search engines.

For a more in depth analysis, see the comment in my German Links & Law Blog 

 

8. In short (it's all about adwords and metatags in the USA ...)

AdWords

  • The U.S. District Court for the Eastern District of Kentucky denied a motion to dismiss without actually deciding whether the purchase of keywords was a trademark use, holding merely that the plaintiff's Lanham Act claim was "plausible". (T.D.I. Int'l Inc. v. Golf Preservations Inc., E.D. Ky., No. 07-313, 1/31/08)

  • In a case, where competetor's trademark was displayed in the ad copy, a federal court found initial interest confusion as a matter of law, because the defendant offered no evidence to show a lack of initial interest confusion and could offer no explanation for why he chose plaintiff's trademark as an Adword. (Storus Corp. v. Aroa Marketing Inc., 2008 WL 449835 (N.D. Cal. Feb. 15, 2008))
    For more information on this case see: Goldman, Eric, Adwords Ad Creates Initial Interest Confusion -- Storus v. Aroa, Technology & Marketing Law Blog

  • The Second Circuit heard oral arguments in Rescuecom v. Google. Click here for a comprehensive report by James Grimmelmann.

Metatags

According to the 11th Circuit the use of trademarked terms in metatags constitutes trademark infringement. Judging from the statement that the description Google used in the search results included the trademarked term, the defendant probably used it in the description metatag.

North American Medical Corp. v. Axiom Worldwide, Inc., 2008 WL 918411 (11th Cir. April 7, 2008)

For more information on the case see: Goldman, Eric, 11th Circuit Freaks Out About Metatags - North American Medical v. Axiom, Technology & Marketing Law Blog

 

New in Legal Resources

  • Euler, Ellen, Web-Harvesting vs. Urheberrecht, CR 2008, 64-68

  • Wiebe, Andreas, Suchmaschinenmonopole und Kartellrecht, Medien und Recht Int. 2007, 179-187

  • Ernst, Stefan, Suchmaschinenmarketing in der aktuellen deutschen Rechtsprechung, Medien und Recht Int. 2007, 195-200

  • Weichert, Thilo, Datenschutz bei Suchmaschinen, Medien und Recht Int. 2007, 188-194

  • Klein, Sheldon / Huffnagle, Henry, Split Decisions: The Issue of "Use" in the Context of Search Engine Keyword-Triggered Advertising, Intellectual Property & Technology Law Journal, Volume 19, Number 12, December 2007, 1-8

 

News

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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