This article concerns the recent Swedish Market Court decision to dismiss a claim against a “buy and sell-site” for deep linking to adverts on a competing site and permitting the use of a competitor’s name as a Google keyword.
In a decision from mid-2006, the Swedish Market Court as court of final instance ruled in proceedings brought by “Blocket”, the largest “buy and sell-site” in Sweden.
Blocket is a part of Norwegian media group Schibsted, which has major operations in Sweden and other Nordic region countries.
Blocket had asked the Market Court to forbid certain practices by competing buy and sell-site Metromarknad. Metromarknad is a service provided by the Swedish edition of Metro, the free newspaper published by Metro International in 20 countries around the world.
In addition to asking the court to stop Metromarknad from making certain allegedly erroneous claims about its services, Blocket demanded that Metromarknad be stopped from providing the public with the opportunity to search Blocket advertisements through using the Metromarknad platform without authorisation. Blocket also sought to restrict Metromarknad from using the Blocket trademark as a keyword in Google’s AdWord programme. When a user of Google’s service searches for “Blocket”, a sponsored link for Metromarknad would appear.
The Metromarknad service accepts advertisements from private individuals seeking to sell goods of various sorts. It also provides a search function for advertisements of goods for sale. The search function casts its net outside of Metromarknad’s own-generated ads to encompass an unspecified number of other online services selling goods, providing the Metromarknad user with these results as well. When the user clicks on one of these external links (marked with the name of the site), he or she is connected to this particular ad on the external site.
Blocket claimed that Metromarknad’s unauthorised collection of and deep linking to advertisements on the Blocket site, and also the use of the Blocket trade mark as an Adword keyword, were in breach of the prescription in Section 4 of the Swedish Marketing Act demanding that marketing must be compatible with good marketing practice and also in other respects be fair towards consumers and businessmen.
The Market Court, without much explanation of its reasoning, dismissed Blocket’s requests. As users were informed in a clear way that they were being linked to another site, this did not constitute unfair marketing. Neither was the use of Blocket’s trade mark as an AdWord keyword found to be in breach of the Marketing Act, though here the Court gave no explicit reasons at all for its decision.
Blocket had earlier failed to win an interim injunction against a similar search and deep linking service provided by the Swedish company Allaannonser (see Bird & Bird Brands Update, March 2006).
Here, Blocket had represented that Allaannonser’s practice constituted a breach of Blocket’s exclusive rights under the Swedish Trade Marks Act. The District Court of Stockholm did not find reason to grant the interlocutory injunction sought, except as to Allaannonser’s use of the Blocket trade mark in so-called teaser ads, where clicking on a Blocket ad produces an unrelated advertisement shown before the actual ad on the Blocket site is presented. The case between Blocket and Allaannonser was later concluded by a settlement and the claims of breaches of Blocket’s other intellectual property rights were left without a court ruling.
Searches for goods on Metromarknad no longer display results from the Blocket site. It is however regrettable that the Market Court ruling was so terse in explaining the Court’s reasoning. It appears likely that other participants in the online search and marketing services will return similar questions for the Court’s consideration.