Trademark infringement through adwords? the Bananabay II decision


Jens K├╝nzel

The Bananabay II case, decided by Germany's Federal Supreme Court, concerns the practice of using Internet search keywords containing competitor trademarks, a practice that has become quite common.

The Bananabay II case, which was decided by Germany’s Federal Supreme Court in February 2011 and is the origin of the European Court of Justice’s (now the Court of Justice for the EU) decision in March 2010, concerns a practice that has become quite common on the Internet.

Many businesses pay search engines to have their advertisements (and usually a link to the businesses’ websites) appear on search engine results when certain keywords are used for Internet searches. Some keywords contain competitor trademarks so that when a customer searches for a certain trademark, their advertisements pop up at the top or to the side of the actual search results instead.

The usual case is that the competitor trademarks are not used in the advertising itself, but only as an invisible keyword. The parties in the Bananabay II case sold erotic articles. One competitor used the other’s trademark ‘Bananabay’ as a keyword for an adwords advertising campaign in a search engine, but did not use the trademark in the advertising itself.

Bananabay II, Germany, adwords, infringement