• Professional News
  • 05 December 2012

Use of Google AdWords in contravention of the Danish Marketing Practices Act

The Copenhagen Maritime and Commercial Court has established that it may be contrary to the Danish Marketing Practices Act for companies to use the trademarks or trade names of their competitors when linking to their own products in connection with the use of Google AdWords.

AdWords is a service offered by the search engine Google, in which you pay for your website to appear first in search results if certain words are searched for. This makes it possible to target the marketing of your website at consumers who actively search for specific services. However, according to a recent judgment, this practice may be contrary to the Marketing Practices Act. If you choose to use the trade names or trademarks of your competitors as AdWords to generate traffic on your website, this may be contrary to the Marketing Practices Act according to the Copenhagen Maritime and Commercial Court.

The case in question concerned a Danish lessor of generators and dehumidifiers. Most of the equipment is owned by the company itself, whereas large machines are leased from other companies. One of the company’s international business partners wished to enter the Danish market and chose to buy AdWords. In this connection, it used the trade name of the Danish company to draw attention to its own website with a view to attracting more customers, including customers of its Danish business partner.

The Copenhagen Maritime and Commercial Court found that this practice was contrary to s. 1 of the Marketing Practices Act on good marketing practice and s. 18 on the use of distinctive marks belonging to other companies, and the Court awarded the Danish company a discretionary compensation of DKK 5,000. This relatively small amount should be seen in the light of the fact that the above-mentioned practice only resulted in nine visits to the website of the opposing party.

The Court also attached importance to the close cooperation between the parties as well as the foreign company’s clear intention of taking customers directly from the Danish company.

The Court’s decision differs from international practice, which has been reluctant to deem it a trademark infringement for companies to use the trademarks or distinctive marks of other companies as AdWords. However, in Denmark, the Marketing Practices Act offers supplementary protection of distinctive marks for the benefit of rightsholders.

The judgment means that, in Denmark, you should be very careful if you use the distinctive marks of competitors as AdWords to generate traffic on your own website.

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