Trademark liability for linked Google ads
In its judgment I ZR 29/18, the First Civil Senate of the Federal Court of Justice determined that a trademark owner can oppose the use of his trademark in an advertisement after a Google search.
The BGH thus confirmed the decision 29 U 486/17 of the OLG Munich of 11.01.2018.
In its decision, the Federal Court of Justice stated that a trademark owner may oppose the use of his trademark in an advertisement after a Google search if the trademark is misleadingly used in the advertisements due to the concrete design, so that customers are (also) led to offers of third-party products by the advertising effect of the trademark exploited in this way.
In its decision, the BGH ruled in favour of the plaintiff - Ortlieb GmbH - which claimed injunctive relief and reimbursement of pre-litigation costs from the defendants of the Amazon group on the basis of § 14(5) and (7) of the German Trade Mark Act from their word mark 'Ortlieb'.
In this case, the applicant, which does not sell its products via the platform 'amazon.de', challenged the fact that, when entering search terms for the products marketed by the applicant in the Google search function, advertisements booked by the defendants appeared which contained the relevant search terms and were linked to offer lists on www.amazon.de, whereby the offer lists also showed products of other manufacturers in addition to the applicant's products.