In Germany, several decisions were rendered recently by courts of first instance and courts of appeal, in both interim injunctions and principal proceedings, concerning the question if the use of third-party trademarks in identical or similar form as a search term for purposes of the so-called AdWord advertising offered by the search engine Google is to be regarded as use of the term as a trademark within the meaning of the Trademark Act, and, if so, if there is a risk of confusion. If both questions are answered affirmatively, this constitutes trademark infringement. The views taken by German courts of first instance and courts of appeal differ significantly. On 22 January 2009, the German Federal Court of Justice rendered decisions in three distinctly different cases. Two of the cases were decided by the Federal Court of Justice and injunctive relief was ruled out. In the third case, the Court suspended the proceedings and referred the question of whether or not the use of the designation was to be regarded as the use of a trademark within the meaning of the Trademark Act to the European Court of Justice for a preliminary ruling. 

The article, written in German by Alexander Klett, appeared in Kommunikation & Recht, issue 5/2009, p. 317 et seq.

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