The use of a competitor's trademark in a paid advertisement constitutes an act of infringement.
The firm has just obtained an interesting decision in a dispute concerning the unauthorized use of a client’s brand in a paid advertisement published on a search engine to divert customers to its site. The Nancy Court of Justice has just condemned this competitor for acts of infringement committed.
In this case, the plaintiff company has developed a nutritional rehabilitation program, which it provides as part of its network of agencies, which source adapted food products from it and registered a trademark to develop this activity. She notices and notes that an e-commerce company, specializing in the marketing of diet products, publishes advertisements on several search engines, in which she mentions.
Forced to summon to obtain compensation for the damage suffered, the legal debate will then focus on whether this unlawful inclusion in the text of the paid advertisement constituted an act of infringement of trademark law.
In defense, the opposing party disputed all act of infringement by focusing mainly on the case law on keyword purchases, which do not constitute acts of counterfeiting or parasitism, insofar as this does not entail confusion in the customer’s mind.
We argued in claim that a display in first position on the Internet result pages, by searches using keywords designating food supplements and mentioning a sign similar to the brand invoked, then directing the consumer by a hypertext link to the site of a competing company that sells its own food supplements, established the existence of a likelihood of confusion in the mind of the public, as may have been judged by the Court of Cassation.
It is in this sense that the Nancy Court of Justice will judge:
« However, it should be remembered that, as a matter of principle, the purchase of a competing trademark as a keyword for an advertisement is not reprehensible as such, provided that this purchase does not affect the essential functions of the registered trademark and the protection of its related rights. An economic operator is thus not prohibited from acquiring a competitor’s company name or brand as a keyword in an online advertisement if it does not include the competitor’s company name or brand in the title of the advertisement.
Thus, by making the RNPC brand, owned by GROUPE ETHIQUE ET SANTE, appear in the very title of its commercial advertisement, DEVINELLE has undermined the essential function of the RNPC brand, which consists in guaranteeing consumers the original identity of the product. Indeed, the configuration used by the company DEVINELLE suggested the existence of an economic link between the company DEVINELLE as advertiser and the company GROUPE ETHIQUE ET SANTE as trademark owner. It follows in particular that the normally informed and reasonably observant Internet user has not been able to know, on the basis of this promotional link, whether the advertiser is a third party in relation to the trademark owner or whether it was economically linked to the latter. »
This decision is interesting, and reminds us that digital marketing actions must be carried out in compliance with trademark law, and implemented in a fair manner.
TJ of Nancy, April 23, 2025, No. RG 24/00343
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