Further Chapter to AdWord Saga -German Supreme Court Publishes Grounds to Bananabay II Decision

摘要

This is the third BGH decision on the Google AdWord service (the others being PCB-Pool and Beta Layout GmbH). All three decisions confirm that the BGH generally considers the use of Google AdWord itself as lawful, non-infringing uses of a third party's trade mark. The BGH has now made clear in the Bananabay II decision that, in its view, the internet user is able to ascertain the origin of the goods, and that therefore there is no trade mark infringement, when the advert which is triggered by the AdWord: (ⅰ) Appears in the "advertisements" or "sponsored links" sections of the Google website; and (ⅱ) Where the advertisement or the URL of the link to the website of the advertising party does not use the third party's trade mark in a visible manner.