No third-party trademark in subdomain!

Does misleading advertising contrary to competition law occur when an online retailer includes a subdomain containing a trademark in a promotional advertisement and the corresponding link leads to a website on which only isolated products of the trademark are offered, but predominantly goods of other trademarks? The Higher Regional Court (OLG) Frankfurt am Main had to clarify this.

An office supplies dealer advertised on the Internet with the following advertisement:

"XY promotional items – XY with your company logo

Advertisement www.(…).de

Calculate now at low cost online!

Fast delivery times – Free consultation – Top prices – Large selection"

The AdWords advertisement appeared as one of several results when an interested party entered the search term "XY promotional items" on the website "google.de". The subdomain with the trademark name led to a page on which predominantly products of other trademarks are offered.

A competitor of the online retailer objected to the advertisement as misleading and took action against it. The Regional Court (LG) Frankfurt am Main shared the competitor's view and issued an interim injunction. The advertising online retailer filed an appeal.

The court's decision regarding third-party trademarks in a subdomain

The appeal was unsuccessful. The Higher Regional Court (OLG) Frankfurt am Main upheld judgment dated 02.02.2017 – case number 6 U 209/16 the interim injunction from the first instance and thus confirmed misleading advertising.

The advertisement was capable of creating a relevant false impression in the addressed public regarding the quality of the goods offered accessible via this link. The relevant public would expect that exclusively or at least predominantly promotional items of trademark XY would be offered on the advertised website. This expectation was not met.

Conclusion

The user is misled when a Google AdWords advertisement contains a trademark in the subdomain but the link leads to a website on which predominantly goods of other trademarks are offered. When advertising with trademarks, there must also be a correspondingly broad range of products of those trademarks available.