The German Supreme Court (Bundesgerichtshof) has on 07.10.2009 ruled on liability for links in a dispute between the limited company „Rose Versand GmbH“ and www.raddiscount.de (Az. I ZR 109/06).
The case concerned the use of a third party’s trademark as a link in so called affiliate marketing. The Court concluded that an advertiser may be held liable for a trademark infringement committed by another company, which pursues marketing operations on the advertiser’s behalf.
The Court issued its ruling on 7 October 2009, only a few weeks after the Advocate General, Poiares Maduro, delivered his Opinion on the Google AdWords case (joined cases C-236/08, C-237/08 and C-238/08) stating that Google has not committed a trademark infringement by allowing advertisers to select, in AdWords, keywords corresponding to trademarks.
In both AdWords and affiliate marketing, the company offering the advertising space in the form links is not the company marketing the product. The compensation payable to the company offering the advertising space is based on the amount of clicking the links.
Based on the German Supreme Court’s decision, an advertiser may be held liable for a trademark infringement committed by another company, in the event the advertiser pays compensation to the other company for having a link to the advertiser’s offers and the other company infringes a third party’s trademark with such a link.
Source: Bundesgerichtshof