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
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
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