Can a competitor use your brand name in Google Ads?

Online visibility is essential for businesses today. A common way to gain more visibility is to advertise through Google Ads. A company chooses specific keywords for which it wants to be displayed. When an internet user enters one of these terms in Google, an advertisement with a link to the company’s website appears above or next to the search results.

In practice, a company usually chooses keywords that match the products or services it offers. However, it is also possible to advertise on other keywords, such as a competitor’s brand name. Entrepreneurs regularly ask us whether this constitutes an infringement of their brand. This may seem unfair to the brand owner, but is it also legally unfair?

Trademark infringement via Google Ads

When a competitor uses your brand name as a keyword in Google Ads to display advertisements, that competitor is using your brand. This also applies when the brand name itself is not mentioned in the advertisement text.

Is the competitor using the trademark for the same products or services for which your trademark is registered? If so, as the trademark owner, you can prohibit this use if one of the so-called trademark functions is affected. Examples of this are:

· The indication of origin function: consumers must be able to recognise who the products or services on offer come from.

· The investment function: the trademark serves to build a reputation and retain customers.

The trademark functions may be affected in the following situations:

• Confusion about origin: your competitor’s advertisement must not give the impression that it originates from your company or that there is an economic link between you and your competitor. Even if your competitor’s advertisement is so unclear that an average attentive internet user cannot determine who it originates from, it is assumed that confusion about the origin arises.
• Damage to your reputation: the advertisement may not discredit your brand or damage the good name of your company.
• Impediment to your investment function: the advertisement may not hinder you in using your brand to build or maintain a strong reputation and to retain customers for your company.

Comparative advertising via Google Ads

Advertisements via Google Ads may be considered comparative advertising. Comparative advertising occurs when a company compares its products or services with those of a competitor, even if the competitor is not explicitly named. However, the mere fact that an advertisement from a competitor appears after entering your brand name is not sufficient for this.

The advertising text must make it clear to the consumer exactly what is being compared. For example, an advertisement that refers to “other top brands” can already be considered comparative advertising, without a competitor being mentioned by name, provided it is clear which brands are meant by “other top brands”.

Is it comparative advertising? Then it is only permitted if the applicable conditions are met. You can read about the specific conditions that apply in my previously published article: Comparative Advertising: What is and is not allowed?

Questions?

Do you have any questions about this article? Please contact one of our solicitors by email, telephone or fill in the contact form for a no-obligation initial consultation. We are happy to assist you.