*BGH: Clear Win For Google AdWords in German Eis.de / Bananabay II Case

The German Federal High Court on Civil matter (BGH) ruled in early January that the booking of a sign identical to a trademark to trigger ads for similar products or services does not infringe TM law as long as the text of the ad does not contain the TM and the Display-URL points to a third-party website.

Today the full text of the decision got published (BGH, 13.01. 2011, Az.: I ZR 125/07).

The court not only ruled on the trademark aspects but also used the occasion to state expressively that AdWords and “MetaTags” have to be treated differently and that Keyword Advertising does notconstitute an act of unfair competition.

The decision constitutes a significant victory for Google AdWords and its customers in Germany. Although the author does not fully understand what the court was trying to say in para 27, the decision is of surprisingly clear and also brings long-desired clarity to other legal questions related to keyword advertising.

As the author is painstakingly trying to finish a paper on L’Oreal on time here are just a few highlights:

Para 19: The plaintiff used a sign identical to a TM for identical goods and services.

Para 20: There is a use “for goods and services”.

Para 21: The sign however is not getting used “as a trademark” as the use doesn’t have an adverse effect upon the functions of the trademark.

Para 22 ss: The function of origin is not affected as the ads are clearly labelled and separated.

Para 26: No reasonable internet user would assume an economical connection ...

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