A bit of a golden oldie, but certainly worth another look again, especially in the face of the more recent developments in terms of using trademarked keywords in paid search results (Google AdWords), already discussed here and here.
In its so called “Impuls III” – decision (18. May 2006 – I ZR 183/03) the German Federal Court of Justice has decided, that the unauthorised use of third party signs in the source code of a website is relevant as infringement under the German Trademark Act, even if these signs are imperceptible (to the human eye).
This is no different in cases where such signs are being incorporated in the actual text of a website (be it in very small fonts or font colours matching the background colour). The principle of Exhaustion (Sec. 24 Trademark Act) does only allow such use, if the specific original product is being promoted. German Federal Court of Justice, “AIDOL” – decision, (8. Feb. 2007 – I ZR 77/04). A similar line-up of font matching is discussed here by Martin Schwimmer in his very comprehensive Trademark Blog (US law).
Based on this, the recent development as to how the Federal Court of Justice is judging third party keywords in paid for search results, appears a bit surprising at first sight. It seems that in the opinion of the court one of the key differentiators between meta tagging cases and AdWords cases is the “likelihood of confusion”, which isn’t seen as an issue in paid for search results as long as they are distinct from organic results. Hence, the court stresses segregation of paid for search results from organic search results and labelling paid for search results as advertisement (see here and here again).
May 18, 2009 No Comments