Dynamic Search Ads, as offered by Google, utilise an organic web crawling technology where instead of the advertiser specifying particular keywords, the entire website is opened for the technology to extract keywords from the entire content of the website (including synonyms of actually used content). The explicit manual exclusion of relevant terms as keywords is possible, but not realistically feasible.
Recently, the Austrian Supreme Court (OGH 22 November 2022, 4 Ob 134/22 t) ruled on the liability of advertisers who unknowingly commit a trademark infringement by using Dynamic Search Ads via Google. In the case, the plaintiff was the owner of the trademark AIRBUTLER (designating air purifiers), which was also used in the defendant's Dynamic Search Ads on Google.
The Austrian Supreme Court ruled that an advertiser using Google's Dynamic Search Ads is liable for unlawful acts committed in connection with the content and design of advertisements, even if it does not specify the content and form of the advertising in detail or expressly waives content specifications. This particularly applies to advertisement with Dynamic Search Ads, especially since the risk associated with these types of ads – that infringements can also be committed "automatically" – is inherent in this form of advertising and not unforeseeable.
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