Google Adwords / Google Ads, a type of commercial advertising that has emerged as a result of technological developments, allows advertisers to select keywords related to the product or service they offer and to help determine when and where the ad can be displayed. In this context, Google does not automatically prevent the advertiser from using trademarks or commercial names belonging to competitors in their advertisements. In Google Adwords ads, whoever pays the highest price or makes the most appropriate referral for a keyword, even if such keyword is related to a trademark owned by someone else, can be displayed first in the ad rankings. However, this can lead to negative consequences for trademark owners, such as competitors taking advantage of their trademarks and thus gaining higher visibility in searches, or trademark owners paying high fees for their trademarks to appear in higher ranking in search engines.
The Advertisement Board ("Board") examined the advertisements created in this manner in accordance with the principles of advertising law and unfair competition at its meeting dated March 12, 2024, and numbered 343. Accordingly, the Board imposed a suspension on advertisements in which a company's trade name and the trademark used to identify its services are used as keywords by other companies, on the grounds that these advertisements are misleading to consumers.
Although there is no provision directly related to keyword choices in the advertising law legislation, the Board evaluated the advertisements in question in accordance with Article 7 of the Regulation on Commercial Advertising and Unfair Commercial Practices ("Regulation") regulating the principles of truthfulness and honesty, the basic principles of advertising law stating that advertisements should not mislead consumers, Article 9 on the advertiser's burden of proof and Article 11 on unfair advantage obtained from reputation of others.
Accordingly, the Board assessed that it is the advertiser's responsibility to select the keywords provided by the media organization or to determine and enter the keywords and titles into the system and decided that the advertisements created by selecting the trademark, trade name or sign of other companies as keywords are misleading to consumers and unfairly benefit from the reputation of the trademark owner. Some of the Board's decisions are as follows:
- In the search results made through the Google search engine with the phrase "netflix", which refers to the trade name and trademarks of Netflix Inc.; advertisements of GAİN Medya A.Ş., which also provides on-demand broadcasting services over the internet, were encountered. The Board has determined that these advertisements contain the expression "Paid sponsored advertisement. GAIN. https://www.gain.tv/. Netflix - Start Watching Now. GAIN Original Productions and Much More on GAIN (...)" and that consumers who click on the title are directed to the advertiser's website https://www.gain.tv/; therefore, it has been evaluated that these advertisements are misleading to consumers and cause unfair competition.
- It was also determined that paid sponsored advertisements related to a company providing e-commerce / online retailing and on-demand broadcasting services over the internet were included in the search results made with the phrase "netflix" through the Google search engine, and that consumers who clicked on the advertisement were directed to the advertiser's website. Although it was explained by the advertiser that the expressions in the promotions in question may have appeared due to the sale of "Netflix" branded products on the website, it has been evaluated that the promotions in question are misleading to consumers, considering the fact that another on-demand broadcasting platform is associated with Netflix in the advertisement image and that the advertiser offers the on-demand broadcasting service in question, and that it is the advertiser's responsibility to select the keywords offered by the media organization in the promotions made through the Google system or to determine and enter the keywords and titles entered by the advertiser into the system.
As a result of the above-mentioned examinations, the Board decided to impose a suspension penalty against the advertisers on the grounds that the advertisements were misleading to consumers and caused unfair competition, in accordance with the Law and Regulation No. 6502 on the Protection of Consumers.
It has long been accepted in trademark law that the acts subject to the Board's decisions constitute trademark infringement and unfair competition. In this context, Article 7/2(d) of the Intellectual Property Law ("IPL") stipulates that "the use of the same or similar sign on the internet in the form of a domain name, routing code, keyword or similar forms in order to create a commercial effect" shall constitute trademark infringement.
As a matter of fact, in the decisions of the Court of Cassation1 and the Regional Court of Appeal2, in addition to the acceptance that the use of another trademark owner's trademarks as keywords constitutes trademark infringement and unfair competition, in the decision of the 11th Civil Chamber of the Court of Cassation dated 12.12.2016 and numbered E. 2015/12152, K. 2016/9489, it was accepted that the defendant's use of the plaintiff's trademarks as adwords keywords in Google search engines is contrary to the principle that comparative advertising should be made within the framework of the principles of fair competition.
In conclusion, advertising by using someone else's registered trademarks and distinctive marks as adwords and redirecting to one's own website may be considered misleading and unfairly benefiting from reputation in accordance with the advertising law and may also cause unfair competition in accordance with the Turkish Commercial Code. In this way, it is evaluated that by manipulating consumers' searches on the internet and taking advantage of the trust and reputation of the relevant company, goods or services are purchased from different companies or websites. As stated above, it is accepted in the decisions of the Court of Cassation that this form of advertisement, in addition to constituting trademark infringement, is also contrary to the principle that comparative advertising should be made within the framework of the principles of fair competition.
Although the Board did not evaluate the aforementioned advertisements as comparative advertisements, the Board made an accurate assessment according to Article 7 of the Regulation regulating the principles of truthfulness and honesty, Article 9 regarding the advertiser's burden of proof and Article 11 regarding unfair use of reputation of others, and determined that the advertisers of Google Ads and similar services are responsible for the selection of keywords and that the unauthorized use of someone else's trademark to promote their own goods and services creates unfair competition. We are of the opinion that these decisions of the Board are in line with the judicial decisions and the opinions of legal scholars, which is appropriate in terms of the principles of trademark and advertising law.
Footnotes
1. Bknz. Yargıtay 11. Hukuk Dairesi 2.11.2022 tarihli ve E. 2021/3612 K. 2022/7681 sayılı kararı
2. Bknz. İstanbul Bölge Adliye Mahkemesi 16. Hukuk Dairesinin 4.10.2023 tarih ve E. 2021/2047 K. 2023/1355 sayılı kararı
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