Higher Regional Court of Braunschweig, decision of April 2, 2014, file number 2 U 8/12
In this case tried before the Higher Regional Court of Braunschweig, the license holder of the trademark "Posterlounge" brought a lawsuit against the operator of a price comparison website for unauthorized use of the trademark "Posterlounge" as meta tag in the source code of the website and within Google search results, claiming for cease-and-desist order, disclosure and damages.
The plaintiff discovered that search results for the term "Poster Lounge" on Google were linked to the respondent's price comparison website. The process leading to Google search results was as follows: Upon entry of the search terms "poster" and "lounge" on the respondent's website a results page displaying links to offers containing these search terms was displayed. The search terms entered by the user were incorporated into the source code of the website, inter alia, the search terms were repeated on the results page. This results page was preserved even after the user had left the website and, hence, appeared in the list of Google search results upon entry of the search terms "poster" and "lounge".
The plaintiff claimed that the respondent had hereby infringed his trade mark rights. By incorporation of the term "poster lounge" in the source code and as meta tag on his website, the respondent had intentionally influenced the Google search results for the terms "Poster lounge" or "poster lounge" to his advantage. The respondent replied that he had not performed a direct act of infringement himself. Being an operator of a search engine he had merely displayed search requests on the result page. This had required the incorporation of the search terms into the source code which was legitimate according to the "Partnerprogramm"-decision by the German Federal Court of Justice. Displayed search requests would then lead to the Google search results.
The court essentially confirmed the plaintiff's view. While it is the case that the operator of a search engine is allowed to save search requests and to display respective search results, trademark infringements caused by derivative Google search results are nonetheless attributable to the operator. In such cases, the operator of a search engine is not liable as perpetrator but only as interferer (Störer) for failure to comply with his reasonable infringement monitoring duty (Prüfpflicht), a duty that is, however, only triggered upon information of the infringement by the trade mark's owner.
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