Using a Competitor's Business Name in an Advertising Campaign
In the age of the ubiquitous Internet, entrepreneurs actively use advertising campaigns run by the Internet giant Google (AdWords campaigns) in order to reach as many recipients as possible. They use so-called keywords: when these are entered, their advert appears in the search results. But what if the keyword is the name of a competing business? That is the subject of today's post.
Can the Name of a Competing Business Be Used in an Advertising Campaign?
Such conduct clearly raises doubts and may be examined as an act of unfair competition. One entrepreneur, seeking to reach a customer, uses the sign of another, competing entrepreneur, which may also be a registered trade mark.
Using the Name of a Competing Business in an Advertising Campaign: What Did the CJEU Rule?
Such a case was assessed by the Court of Justice of the European Union, which in Case C-323/09 Interflora held this practice to be permissible, while stating that certain conditions must be met.
In the Court's view, the proprietor of a trade mark may prohibit the use of that word in another business's advertising campaign only if the use of the mark by that other business may adversely affect the mark's function of indicating origin, in such a way that the advert does not enable, or enables only with difficulty, a reasonably well-informed and reasonably observant Internet user to ascertain whether the goods or services referred to in the advert originate from the proprietor of the mark or from an undertaking connected with it or, on the contrary, from a third party. The point, therefore, is that such an advert must not mislead users as to who the advertiser really is. An example of a misleading advert would be, among others, a situation where the competing entrepreneur's sign appears directly in the content of the advert.
Accordingly, in a keyword advertising campaign it is permissible to use another business's sign if the advert itself does not mislead as to who the advertiser is.
Legal basis:
Act of 28 July 1983 on Inheritance and Gift Tax (Journal of Laws of 2018, item 644)
