In order to provide their users with the best possible results for their search queries, search engines use algorithms. When it comes to searching for goods and services, trademark infringements can often occur. Specifically, the so-called origin function of the trademark is often violated. This ensures that the products of one company can be distinguished from those of another.
User should be able to recognize competing product as such
Recently, the Higher Regional Court (OLG) in Frankfurt/Main ruled that the display of products competing with the product that is actually being searched for does not violate the origin function of a brand if the user can recognize the competing products as such. The court had to decide whether a claim for a cease and desist order, upheld at the first instance by the Landgericht (Regional Court) Frankfurt/Main, was still valid. The owner of the trademark had filed the lawsuit against the operator of the website, the person responsible for the technical distribution and a competing provider.
Perception of the average Internet user is key
In order to improve their search results, online shops and other portals specializing in Internet trading often also display competing products. In many cases, advertisements from other providers are not distinguished from the products actually sought, either by color or in any other way, as is the case with common search engines.
As long as the average Internet user has to know on the basis of the market situation that the advertiser and the trademark owner are not identical, or as long as the average Internet user can recognize this from the way the products are presented, this is not an infringement of any trademark rights.
If you are looking for brands, you will also be shown competitors
Applying this two-step evaluation scheme developed by the European Court of Justice (ECJ), the Higher Regional Court concluded that the display of competing products does not constitute an infringement. This is mainly due to the fact that the prudent user knows from experience that it is common for algorithm-driven search engines to display competing providers when entering a brand name. Furthermore, the displayed products were marked with additional information that made it easier for the user to identify the third-party vendors.
Support when designing your online shop
This case illustrates how different opinions can be when it comes to trademark infringements. After all, what is supposedly easy for one person to recognize may be much more difficult for another. In order to avoid costly litigation, it is therefore important to ensure that trademark and competition laws are not violated when programming search algorithms for online sales portals. Our attorneys specializing in trademark and competition law would be more than happy to help you design your online shop with legal certainty.