German court rules on Google's liability for unlawful phishing Ads
The ruling, which is of interest to trademark owners, is likely the first decision on the liability of search engines as intermediaries under the Digital Services Act. The Düsseldorf Regional Court has ruled that Google, as the operator of the Google Ads advertising service, is obliged to check third-party ads for reported illegal content such as phishing attempts and to prevent them in future. This case illustrates platform liability in the European Union under the Digital Services Act (DSA) (Regulation (EU) No. 2022/2065) and impacts the strengthening of intellectual property rights in the digital space.
Skinport against Google
On 4 December 2024, the German court ruled that Google is liable for third-party advertisements on the platform that infringe trademark rights if it does not act accordingly upon knowledge (Case: 2a O 112/23). In the specific case of "Skinport", Google users had been deceived by phishing pages. The court confirmed that platforms such as Google must act as soon as they become aware of such infringements in order to prevent the repetition of identical and similar infringements. The ruling strengthens trademark protection online and highlights the responsibility of large online platforms in preventing trademark violations by user-generated content.
The German company Skinport, which operates an online marketplace for so-called "skins" (virtual items that change the appearance of video game characters) for the computer game "Counter-Strike: Global Offensive", is the owner of the EU trademark "Skinport" and discovered that fraudulent advertisements were being placed by third parties via Google Ads. These ads used the sign "Skinport" and the domain "skinport.com", but linked to fake-websites. These phishing pages were used to obtain login and payment details from users. The ads were designed in such a way that users could have mistaken them for official Skinport advertising. The use of the identical trademark "Skinport" in connection with identical services constituted a trademark infringement pursuant to Art. 9 of the EU Trademark Regulation (EUTMR).
Source: Judgment of the Düsseldorf Regional Court of 04.12.2024, Ref. 2a O 112/23
After Skinport had warned Google and requested it to stop such third-party ads with the "Skinport" sign, Skinport obtained a preliminary injunction. The Düsseldorf Regional Court found Google liable as a so-called "interferer" for the trademark infringement.
Platform liability under the Digital Services Act (DSA)
The court held that Google as a host provider merely provides the technical infrastructure for third-party content and maintains a neutral role. Therefore, there is no direct liability. However, that is not a new development. In line with the "Safe Harbour Provisions" for internet service providers under the ecommerce Directive 2000/31/EC which were already known before the DSA, the DSA maintains the rule that platforms such as Google are not subject to any general proactive monitoring obligations for user-generated content. In accordance with the now applicable Article 6 of the DSA, a large platform is only liable if it has been informed of clear infringements and nevertheless fails to take reasonable precautions against further similar infringements.
Google's defense: No "knowledge giving rise to liability"
Skinport had repeatedly pointed out the unlawful ads without Google having done enough to prevent similar infringements in the future. Google argued that the requirements for liability were not met, as no obligations had been breached. The specific ad had been blocked immediately upon notice in order to prevent further infringements. In Google's opinion, there was also no obligation under Article 6 DSA to take further action.
The problem:
Is the platform liability compatible with the Digital Services Act, and can a national court require a service provider to remove or prevent infringements?
Once the individual violation has been blocked, new ads can be placed using other identities or domains. However, trademark owners cannot be disadvantaged by internet users exploiting and circumventing Google's system.
Hence, the Court found that Google was not only obliged to remove the specific ad, but also to ensure that similar "core identical" ads are no longer placed in the future. According to the court, it is reasonable for the platform to identify the specific ad in question and to take appropriate precautions. As Google had been notified of the infringements, it had to take measures to prevent further infringements. By referring to specific ads, it was possible for Google to find the infringing ad and also to identify which ads must now be monitored. One approach is, to block ads that contain the reported domain (e.g. Skinport.com) but do not link to the original website of the rightful owner. Since Google generates profits by actively marketing Google Ads, the platform cannot rely on its purely passive role. Instead, Google must actively prevent trademark infringements and fraud in such cases, for example by adapting automated ad creation processes.
Big platforms face consequences for passivity
This ruling is likely to have an impact on the liability of online advertising platforms - at least in Germany. It clarifies which obligations apply to platforms upon knowledge of legal infringements. Although Google does not have a general obligation to monitor every single ad in advance, the platform must act immediately in the event of a specific notification and
- block the ad immediately,
- Take precautions against further similar infringements and develop a system for early detection (e.g. through additional checking mechanisms or automated filters for domains, links and users)
A signal for the digital space
Trademark owners are likely to welcome the ruling with great approval, as it strengthens their legal protection against illegal practices. Brand misuse through fake ads is particularly quick and easy online. The Court once again made it unmistakably clear that platforms must not remain inactive after a notification.
In practice, this means that trademark owners should collect evidence of infringements and inform the platform operator in a targeted manner with
- The URL of the ad,
- Screenshots of the infringement,
- Presentation of own rights.
Conclusion
This decision shows the practical application of platform liability under the DSA in the digital space. Large platforms cannot rely solely on their role as "neutral" intermediaries if they become aware of a trademark infringement. Instead, they must actively take measures to prevent future infringements. The decision.
The requirements for holding platforms accountable and the necessary notice by the rights holder are outlined. Additionally, the reaffirmation that not every trademark infringement must first be awaited and reported not only strengthens trademark protection, but also unfair competition law by ensuring that users are protected from misleading advertisements. It is pleasing that the decision provides an example of what the duty of platforms looks like. At the same time, the imposition of obligations on platforms continues to expand.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
