Sun, Jul. 17, 2011

Adwords: No Trademark Issue

CK - Washington.   The German Supreme Court in Karlsruhe ruled on the question of trademarks used in search engine advertising search terms, such as Google's Adwords, where the trademark belongs to a competitor of the purchaser of the Adwords term. The decision of January 1, 2011 in the matter I ZR 125/07 remains unpublished on the court's website but counsel to one of the parties published excerpts on July 13, 2011.

The German trademark bar had long argued that Adwords comprising competing trademarks violate trademark and competition law. In the dispute known as bananabay, the court, Bundesgerichtshof, ruled, however, in favor of the free use of trademarks in search engine seeding as long as the consumer will arrive at non-confusing sites.

Thus, a purchaser of Adwords may seed search engines, as a matter of German trademark law -- specifically §5(1)(2)(a) Markengesetz, -- with competing trademarks but may not use the trademark without its owner's authorization on its website or otherwise generate confusion.

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