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Internet Search Hits – a Trademark Infringement?

Online shopping has become an everyday occurrence for many. As a rule, search engines are used which lead to faster results and a more extensive offer.  When searching for a specific brand, whether on the internal search engines of sales portals or with external providers such as Google, often not only the offers of the manufacturer being searched for are displayed, but also those of competitors. The search engines use past search processes to increase their offer for the potential customer.

Already in its decision of February 2018 known as "Ortlieb I", the German Federal Supreme Court (BGH) issued a ruling on the question whether this procedure by search engine providers constitutes a trademark infringement. In the subsequent "Ortlieb II" decision, the BGH had the opportunity to put these principles into more concrete terms.


A trademark is used to distinguish products of one manufacturer from those of other manufacturers. It thus has a function of a so-called "commercial origin indicator". If a trademark is used by a person other than the trademark owner as an indication of commercial origin, this can lead to confusion on the part of the customer and therefore constitutes a trademark infringement.

According to case-law, the question if a sign is used as an indication of commercial origin (and thus as a trademark) on the Internet depends on whether the Internet user can immediately and unequivocally determine by how the offer is made up, whether or not the products in question are those of the trademark owner. For example, advertising on Google that appears when entering a third party’s trademark is generally permissible as long as the appearance of the advertisement (advertising block that is separated from the actual search results) clearly separates the searched trademark from the advertisement. The third party´s trademark is not infringed in such a case.

Decision of the BGH of February 15, 2018 - Ortlieb I

When entering the brand "Ortlieb" into Amazon's internal search engine, competing products were also displayed in the result list without the site operator having pointed this out separately. The owner of the "Ortlieb" brand, which among other things sells bicycle bags, argued that this was misleading customers and thus a trademark infringement.

The BGH, however, emphasized that the lack of differentiation through a separate presentation of competing products and products of the "Ortlieb" brand in the search results alone would not lead to misconceptions on the part of Internet users. Rather, they would expect that products of other brands would also be shown to them in an online shop when they search for a certain brand.

Decision of the BGH of July 25, 2019 - Ortlieb II

The “Ortlieb II” decision also concerned an action brought by the proprietor of the “Ortlieb” trade mark against Amazon. In this case, however, it was not the results of Amazon's internal search engine that were at issue, but the result of a Google search. The advertisement placed by the defendant, which was shown to customers searching for "Ortlieb", contained the heading "Ortlieb bicycle bag" and a link to " bag", where users however reached the hit list known from the "Ortlieb I" decision, which also contained competing products.

In this case, the BGH assumed that the trademark had been infringed, because the Internet user assumes that when clicking on the advertisement, only "Ortlieb" products will be displayed.


At first glance, the different results are surprising, since it shouldn't make any difference whether Internet users first search for the desired product via Google or immediately access the online shop's internal search engine, e.g. on Amazon. At second glance, however, it is precisely the above-mentioned principle for differentiation from trademark use on the Internet that comes into play: it always depends on how the offer is made up and the consumer expectation based thereon.

On the one hand, online shops have the option of expanding the range of hit lists with competing products. It is part of healthy and fair competition that retailers can also show alternatives to the products that are being searched for on the Internet. Nothing else happens during the customer advisory service in a brick-and-mortar shop.

On the other hand, when designing ads on external search engines, greater attention is required. Especially due to the very short texts (here: "Ortlieb bicycle bag"), there is much more danger of committing a trademark infringement.

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