Competitor's use of a brand in advertising

08 Mar 2022

Can a competitor use my trademark to advertise? For entrepreneurs it is often still unclear to what extent this is allowed. In this article I will briefly explain the basic principles once again.

Starting point: infringement

The use of a trademark without the consent of the trademark owner is an infringement. That is the starting point.

This also applies to the competitor who enters someone else's brand (as a keyword) in Google AdWords on behalf of his own advertisement. Although this often happens in practice, it is not permitted. The competitor suggests in this way that there is an economic link between himself and the trademark holder. The trademark is used to attract customers to the competitor's website. However, for the customer it will be unclear whether the trademark belongs to the competitor or the trademark holder.

Exceptions: reseller and comparative advertising

In some cases, use of another's trademark is allowed.

For example, resellers are allowed to advertise with another party's trademark, provided that the product (with the trademark) has been "put into circulation" with the consent of the trademark owner. Quite a mouthful, but what it comes down to is that second-hand sellers are allowed to advertise with the trademark, as long as the product was initially put on the market by the trademark owner or another representative of the trademark owner.

Consider, for example, the advertising of used cars. Initially, the car is sold by an official dealer. The owner can then trade in or sell the car to another garage. In order to be able to sell the used car, this garage is allowed to advertise the car. This may include the trademark of the car.

The second exception relates to comparative advertising. A competitor may use the trademark (and the related product) for comparison with one of its own products. Even if the advertising is done through Google AdWords. Please note the form of the advertising. It must really be comparative advertising. Therefore, the strict legal requirements for comparative advertising must be met. Are these requirements not met? Then there is still trademark infringement.

Want to know more about using brands in advertising? Please contact Frédérique Kuiper.

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