New ruling on the use of other companies’ trademarks in Google Ads

The case was about a company’s registration of another company’s registered trademarks as search words in Google Ads and the use of the trademarks in the headlines of the sponsored results.

THE RULING

The Maritime and Commercial Court stated that no specific reasons had been proven to order the registration of a competitor’s trademarks as search words.

They then state that using a competitor’s trademark as a search word via Google Ads is not per se unlawful as the use of the trademark did not cause confusion for the average consumer.

On the other hand, the Maritime and Commercial Court found that it is against the Trademark Act to use other company’s trademarks in advertising texts/headings as the average consumer risks mixing up the companies.

The company that had used the competitor’s trademark in the advertising text was, therefore, ordered to pay compensation for the use.

Read the entire ruling of the Maritime and Commercial Court in Danish here.

LUND ELMER SANDAGERS COMMENTS

The decision highlights the importance of registering your company name/product name as a trademark so you as a company can prohibit the use of trademarks in the advertising text on Google.

However, the decision leaves open the question of whether the registration of another company’s trademark as a search word may conflict with the Danish Marketing Act. The Marketing Act regulates, among other things, that companies must practice good marketing practices towards other companies in order to create healthy competition. This is, for example, protection against one company benefitting from the efforts of another company. In contrast, the Danish Trademark Act protects against consumers mixing up two companies.

When there is more than one company has a given search word on Google Ads, the cost-per-click may increase explosively. As a result, the company with the registered trademark will experience that their budget on Google Ads has a shorter reach.

Therefore, it is still unclear whether registering another company’s trademark is contrary to good marketing practice.

The deadline for appealing is 7 November 2022, and it is interesting to see if the case will be heard before High Court.

We monitor the case closely.

If you have questions about the case, or if you have other questions trademarks, marketing law or similar, please do not hesitate to contact our specialist, Attorney Jimmy Fuglsbjerg Christensen.