The use of Google Ads campaigns is part of most companies' marketing strategy these days. To appear as high as possible in search results, it is obviously important to select the right keywords. This often involves using terms that describe the products or services offered. But what about using a competitor's brand as a keyword in a Google Ads campaign?
Date:
Sept. 12, 2023
Modified
December 29, 2023
Written by:
Valerie Lipman
Reading time:
+/- 2
minutes
A competitive brand as an adword
It is possible to use a competitor 's brand as an adword, in order to link your own ad to it. If the chosen trademark is entered into the Google search engine, a competitor's advertisement then appears. To answer the question of whether this is permissible, it must be assessed - in short - whether the relevant public can know from the advertisement text that the advertisement comes from a competitor and not from the proprietor of the trademark entered as a keyword.
An example of an advertisement that was at issue in a recent ruling [1] is the following:
This ad appeared after entering the keyword and trademark "Fleurop" and was from Bloemenwinkel.nl. The advertisement text in no way shows that Bloemenwinkel.nl is not part of Fleurop's network. Therefore, based on the advertisement it cannot be assessed whether Bloemenwinkel.nl is a competitor of Fleurop or whether there is an economic link between them. As a result, Bloemenwinkel infringes Fleurop's trademark rights by linking this advertisement to the "Fleurop" trademark.
If a competitor's trademark is used as an adword, it will have to be sufficiently clear from the advertisement text itself that the advertisement comes from a competitor and not from the trademark owner. This can be done, for example, by highlighting the own trademark in the ad text and clearly contrasting it with the competitor's trademark used as an adword. In case a descriptive name like "Bloemenwinkel.nl" is used this is obviously more difficult and the advertisement will have to contain more information to make clear that there is no economic link with Fleurop.
A competing brand in an Ads ad
Another possibility is the use of a competitor's trademark in the ad text itself. This may be permissible, if there is permissible comparative advertising. For example, the trademark of a competitor can be used in the text of an Ads ad, to make a comparison with its own products and services. Again, based on the ad text, it must be clear from whom the ad originates. In addition, the legal requirements that apply to permissible comparative advertising must be met. This means, for example, that the advertisement may not be misleading and that the characteristics of the products must be compared objectively.
Stay Focused
Would you like to know more about using trademarks as adwords or in a Google Ads campaign? Or do you feel that a competitor is infringing on your trademark rights? Our specialized attorneys Valerie Lipman, Joost van Dongen, Niels van den Bogaard and Daniek Regterschot will be happy to help you.
