Meanwhile, the legal evaluation and classification of domain names is quite stable. In general, the regulations of trademark law, general name law and competition law must be applied in an adapted manner to the specifics of the medium Internet in order to solve the legal questions arising here.
According to the meanwhile predominant opinion, domain names do not only represent the technical address of a website, but often also act as name or trademark. This is a "new" form of trademark, which may collide with other trademark rights.
In connection with the use of trademarks on the Internet, the so-called AdWords are also the focus of discussion. It is questionable whether the use of third-party trademarks as keywords is permissible under trademark law in the context of the possibility offered by search engine operators to advertise with AdWord ads.
AdWords are search terms (keywords) which, when entered in the search engine, lead to advertisements of those advertisers who have entered the term as a keyword with the search engine operator. The advertisements (with a link to the advertiser's website) that appear as a result of the keyword being entered are shown, for example, on Google in an advertising block under the heading "Advertisements", which is spatially separate from the hit list. The AdWord does not constitute an independent trademark right, but may collide with such. The extent to which the use of trademarks and company logos by third parties as AdWords encroaches on the trademark rights of the owners has been judged very differently by the courts of first instance to date. In more recent decisions, the Federal Court of Justice and the European Court of Justice have at least clarified questions of detail, confirming that previously applicable rules of trademark law are also applicable in these cases.
Accordingly, a trademark owner will generally not be able to prohibit the use of a descriptive indication as an AdWord, since this is at best a use permitted under trademark law. In any case, the rights to a business identifier will not be infringed if the Internet user will not assume that the advertisement appearing in the separate display block originates from the company whose business identifier was used as AdWord. If the AdWord is identical with a registered trademark and is used as a reference to identical goods and services for which the trademark enjoys protection, it is decisive whether the use of the trademark as AdWord constitutes an act of use under trademark law within the meaning of trademark law. However, even in such a case, a trademark infringement only exists if the use of the AdWord is understood as a trademarked identification of goods/services. If the ad is clearly recognizable as such, trademark infringement will generally not be assumed.