Germany jurisdiction report: Make Google AdWords clear
Buying Google AdWords which are identical or similar to a trademark is in principle permissible as long as the advertisement makes it clear that the internet user is directed through the advertisement to a product other than the trademarked product.
In the case of well-known trademarks, however, this may be inadmissible due to an exploitation or impairment of the distinctive character of the trademark. Where a third party directs the internet user to offers of original goods the permissibility of the use of the trademark as an AdWord derives from the principle of exhaustion.
Case study
In the case Ortlieb II the question was whether a Google advertisement that uses a trademark as an AdWord constitutes a trademark infringement if it directs the internet user to an offer list that contains both the trademarked products and the products of competitors.
Amazon had bought the words ‘Ortlieb bicycle bag’ (Ortlieb Fahrradtasche) as Google AdWords.
When these words were entered into the Google search engine, an advertisement appeared, reading “Ortlieb Fahrradtasche, www.amazon.de/ortlieb+fahrradtasche”. After clicking on this advertisement the internet user was directed to an Amazon page which listed Ortlieb bags as well as bags from other manufacturers.
