Not all German court decisions are about polar bears. As court of appeal the Oberlandesgericht (OLG) Frankfurt am Main last week decided that using a competitor's trade mark as a keyword ("Adword") in an internet search engine does not amount to trade mark infringement, if the search result is clearly recognisable as an advertisement.

The OLG made it clear that it disagreed with other German courts which have treated metags and "Adwords" in an identical manner. The Frankfurt court emphasised the difference between the use of metatags and "Adwords": while metatags are used to divert users to a different website, "Adwords" merely influenced the ranking/position of an advertisement but had no effect on the search result itself. By using the competitor's mark as an "Adword" to openly advertise one's own products, consumers would not be let to believe that the competitor's mark and the advertisor's products were economically linked. Using "Adwords" in such a way was also in accordance with German (unfair) competition laws. The decision is legally binding and cannot be further appealed.

Oberlandesgericht Frankfurt am Main, Decision of 26 February 2008; Case: 6 W 17/08 (press release in German; the decision in its entirety in German/PDF ).

Class 46 comment: "Adword" cases are currently a hot topic in Germany, especially since the first Federal Supreme Court (BGH) decision in this field is still outstanding. It has to be seen whether the BGH will agree with the OLG Frankfurt regarding the legal assessment of metatags and adwords.