Competition law: Liability for trade mark infringements in the search results of an internet search engine

Federal Court of Justice, 04.02.2010, Ref.: I ZR 51/ 08

Accordingly, he is entitled to use the trade mark in the manner registered for him to identify his goods or services and can exclude third parties from using the trade mark within the scope of trade mark protection. The legal consequences of an act of infringement within the meaning of Section 14 are regulated in Section 14 (5) MarkenG. The owner of the trade mark can therefore sue for injunctive relief if there is a risk of repetition. The claim also exists if there is a threat of infringement for the first time.

FactsIn the case before the BGH, a provider of sports equipment had used a specific search term on its website in order to be listed in the search results of the Google search engine. However, this search term was registered as a word mark by one of his competitors. The competitor therefore sued for an injunction against what it considered to be unauthorised use of this word mark.

BGHThe BGH ruled in favour of the plaintiff. Due to the great similarity of the competing products, there was a likelihood of confusion between the two products of the parties, as internet users could easily have been mistaken about the identity of the two products. This likelihood of confusion therefore constituted an infringement of the plaintiff's trade mark rights.

Source: Federal Court of Justice

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