Online (comparative) advertising

A search for products or services nowadays mostly starts online. Therefore, improving the findability of their website is very important for business owners . There are several ways to make a website end up higher in the search results. A commonly used method is to register so-called AdWords, keywords, on the basis of which an advertisement is displayed at the top of the search results in Google's search engine. A descriptive term for the products or services offered or one's own name can be chosen as a keyword, for example. However, it is also possible to register a competitor's trademark as an AdWord. This article will discuss the related requirements.

First of all, it is permissible to use a competitor's trademark as AdWord in order to have one's own advertisement appear in Google's search results. A condition for this is that the ad does not cause confusion as to who the products or services offered in the ad originate from. Since the entered keyword remains visible in the search bar when the ads appear on screen, confusion can easily arise. It is therefore important that the content of the advertisement is sufficiently clear so that it can be determined that it is an advertisement of a competitor and not of the trademark owner itself.

Whether or not an advertisement is sufficiently clear can be illustrated by a recent case between Fleurop and Topbloemen, both operators of a network for the delivery of flowers and bouquets. After entering the search word 'fleurop', the following advertisement of competitor Topbloemen, among others, appeared in the search results of Google.

The District Court of The Hague found this advertisement of Topbloemen insufficiently clear. The relevant public could not see from the advertisement that the flowers offered in the advertisement came from a competitor of Fleurop and not from a florist from the Fleurop network. Market surveys had shown that the name recognition of Fleurop is high and that of Topbloemen is low. As a result, it is assumed that consumers who want flowers delivered and enter the search term 'fleurop' do not know, based on their general market knowledge, that Topbloemen offers a competing delivery network. The fact that the name Topbloemen is capitalized in the advertisement and appears more often in it does not make this different. After all, florists in the Fleurop network also use similar trade names. The Court therefore ruled that Topbloemen infringed on the trademark rights of Fleurop with the ad linked to the AdWord 'fleurop'.

According to Topbloemen, there was permissible comparative advertising because of the mention of "lower delivery costs" in the advertisement. Comparative advertising is any form of advertising in which a competitor or the products or services offered by him are implicitly or explicitly mentioned. The advertisements of Topbloemen can only be regarded as comparative advertising if it is assumed that with the text 'lower delivery costs' an implicit comparison is made with Fleurop. Since, in the opinion of the Court, the relevant public does not know that Topbloemen operates a delivery network competing with Fleurop, the public will also not perceive Topbloemen's advertisements as an implicit comparison with Fleurop. The mere fact that Topbloemen's ad appears after typing in 'fleurop' as a search term does not make it a permissible (implicit) price comparison. Again, the text of the advertisement must be sufficiently clear.

It can be seen from the preceding example that it is important to look carefully at the text of the advertisement when a competitor's trademark is used as an AdWord. If the text is not sufficiently clear, there may be trademark infringement. Incidentally, other circumstances are conceivable in which there is trademark infringement when a competitor's trademark is used as an AdWord. This is the case, for example, when imitation products are offered or when the trademark's image is otherwise damaged. All in all, ample reason to take a close look at the ads linked to your AdWords.

This page was last updated on August 16, 2023.