More on keywords... and a clarification

The European Court of Justice (ECJ) has now published the official translation of the question the German Federal Supreme Court (Bundesgerichtshof) recently referred to the ECJ in the keyword case "bananabay" (BGH I ZR 125/07), now called "Eis.de GmbH v BBY Vertriebsgesellschaft mbH" (Case C-91/09). The question is set out below. IPKat readers may recall the IPKat's earlier translation attempt which can be accessed here if you are linguistically inclined and/or would like to compare whether the Kat got it right.

"Is there use for the purposes of Article 5(1)(a) of Directive 89/104/EEC where a third party provides as a keyword to a search engine operator a sign which is identical with a trade mark, without the consent of the proprietor of that trade mark, so that, on inputting the sign identical with the trade mark as a search term into the search engine, an electronic promotional link to the third party's website advertising identical goods or services appears in an advertising block set apart from the list of search results, that link is marked as a sponsored link and the advertisement itself does not comprise the sign nor contain any reference to the trade mark proprietor or to the products it is offering for sale?"

This Kat would like to take this opportunity to stress that the Bundesgerichtshof did not refer the following question to the ECJ, as erroneously reported by several commentators recently. (Please also see the IPKat's post here which includes the IPKat's original prediction what the Bundesgerichtshof's question might be based on the court's advance press release.) While this Kat is rather flattered that her Adword question made it into so many articles, she feels that this point needed to be clarified:

"Does the use of a third party's trade mark as a keyword/Adword on identical goods/services constitute trade mark infringement under the Directive?"