If a Google AdWords campaign is set up in such a way that an advertisement from another person appears when a protected company name is entered, the company is entitled to injunctive relief against the advertiser. This was ruled by the Higher Regional Court of Schleswig on March 22, 2017 (Ref.: 6 U 29/15). Liability also exists if the advertiser did not choose the headline independently, but knew about it and did not intervene.
Google AdWords causes trademark infringement
The company with the name “W[…] C[…] T[…]” was active in the same industry as the advertiser. As soon as these words were entered into the Google search field, an advertisement for the advertiser’s company appeared. The reason for this was a Google AdWords campaign run by the advertiser.
OLG confirms injunctive relief
The company “W[…] C[…] T[…]” then took legal action against the advertising competitor for injunctive relief. Both the Regional Court of Kiel and the Higher Regional Court of Schleswig upheld the claim. According to the OLG, the plaintiff was entitled to injunctive relief under Sections 5 para. 2, 15 para. 2, para. 4 MarkenG. The advertiser had used the plaintiff’s business name in an unauthorized manner that could lead to confusion.
The advertiser’s advertisement was entitled “Advertisement for W[…] C[…] T[…]”. According to the external appearance, the advertiser had used the company name of its competitor for its own advertising. It was not clear to the average internet user who the advertisement really came from.
Knowledge of the trademark infringement is sufficient
According to the Higher Regional Court, it is also irrelevant whether the headline was created by the advertiser itself or by Google. This is because the advertiser is to be regarded as the disturber in every respect. The reason for this is that the advertiser was aware of this advertisement but did not take action against it.
The judgment of the Higher Regional Court is probably the continuation of an ECJ judgment from 2010 (judgment of 23.03.2010 – C-236/08). In this ruling, the judges generally affirmed the possibility of an infringement if an advertiser uses a third-party trademark in its own advertisement.