Liability for the Use of Competitor's Trademark as Google Keyword in Germany and New Zealand

Abstract

This paper analyses primarily whether the invisible use of a trademark protected term as a Google keyword amounts to an infringing use or gives rise to legal liability under the Unfair Competition Act (Germany), the Fair Trading Act 1986 (New Zealand), or the common law (New Zealand). The analysis addresses the liability of the search engine and the advertiser focusing on German and New Zealand law including some disputes from other jurisdictions. The situation in Germany and Europe respectively is far from clear and in New Zealand no court has ever dealt with this particular issue. Indeed, eight references to the European Court of Justice have been made so far. This paper suggests that the invisible use as a keyword is not comparable to the invisible use as a metatag and that some courts are overprotecting and establishing an absolute right of control. Research shows that the invisible use as a keyword does not interfere with the role of a trademark and confusion of the average internet user is unlikely. In contrary, where the trademark protected term is used visibly within the advertisement text itself it is more likely to accept a liability of the search engine and the advertiser.