17 months after Ortlieb took on Amazon in the courts, Ortlieb has again won the backing of the justice system to protect its brand during searches.
Ortlieb’s case last year concerned search results yielded through Amazon’s site, which pointed towards competitor brands – such as those stocked directly through Amazon rather than through resellers.
For this latest litigation, Amazon was again the adversary but this time through Google Ads, pointing Google search results made specifically for “Ortlieb” again towards Ortlieb competitors sold directly by Amazon, via Google Ads.
The German Federal Court of Justice (BGH) ruled in favour of the outdoor and bike brand on 25 July 2019.
Ortlieb’s latest trip to the courts to protect its brand through search terms was a pressing issue, said the firm, with Amazon “strategically promoting the exchangeability of brands” and “threatening brand identity and sovereignty” like never before.
“If this is lost then medium sized, family owned businesses such as ORTLIEB will no longer be able to make the investments needed to maintain brand status and to guarantee the continued assurance of quality that comes with the Made in Germany endorsement.”
Ortlieb said: “The ruling confirmed our legal perspective in that the use of Google Ads for a general offer of bicycle bags using “ORTLIEB” as the only listed brand name violates not only our trademark but is also contrary to general competition law.
“This practice contradicts the transparency requirement under EU law for online trading which prohibits the tacit display of offers from other brands in search engine results in a trademark search.”
Trademark protection is increasingly seen as an important part of consumer protection at EU level, according to Ortlieb, protecting against shrinking brand diversity and a “questionable concentration” of a few large brands.
Ortlieb went on to hammer home its point that consumers don’t truly distinguish between Google Ads and standard Google search results.
“In our opinion it makes no difference to the consumer whether he or she clicks on a Google Ad – or directly enters the search command “ORTLIEB” – is then offered falsely attributed third party products. Expert opinion tends to agree. In a recent report conducted by the polling agency: Pflüger Rechtsforschung – (commissioned by Markenverband e.V., WALA Heilmittel GmbH, VKE and ORTLIEB Sportartikel GmbH.) showed that only half of the population has an acceptable experience on Amazon and that the greater part of them are misled by a manipulated ORTLIEB results list.
“The end consumer is dependent on unadulterated results as they are under the assumption that they are only shown what is being searched for and they cannot reliably recognise third party search engine advertising.”
This potentially landmark set of cases have arguably set the stage for other brands to take similar action to protect their businesses.