Is a competitor bidding on your brand name in Google Ads?
A competitor bidding on your brand name as a Google Ads keyword is lawful in the EU and UK. Under Google France v Louis Vuitton (CJEU, C-236/08, 23 March 2010), it infringes your trademark only when the ad leaves a reasonably attentive user unable, or able only with difficulty, to tell that it does not come from you.
Is it legal for a competitor to bid on my brand name?
Yes, in most cases. The Court of Justice of the European Union decided in Google France v Louis Vuitton, joined cases C-236/08 to C-238/08, judgment of 23 March 2010, that Google does not use your trademark when it sells it as a keyword. The advertiser who buys the keyword does use it, and you can stop that advertiser only where the ad does not let normally informed and reasonably attentive internet users work out, or lets them work out only with difficulty, whether the goods come from you or from someone else.
The Court of Justice went further in Interflora v Marks & Spencer, case C-323/09, judgment of 22 September 2011. A competitor that bids on a trademark with a reputation and offers an alternative is, as a rule, engaged in fair competition. That changes where the ad offers an imitation of your goods, dilutes or tarnishes your trademark, or damages its ability to tell people who is selling.
UK courts apply the same test. Both English decisions below were decided under it.
When does a keyword ad cross the line?
When the wording of the ad points to you. The keyword alone is rarely the problem.
| What the competitor does | Likely result | Authority |
|---|---|---|
| Bids on your brand, ad shows only its own name and products | Lawful | Lush v Amazon, [2014] EWHC 181 (Ch) |
| Bids on your brand, ad text names your brand, and your goods are not sold there | Infringement | Lush v Amazon, [2014] EWHC 181 (Ch) |
| Ad implies a commercial link with you, such as membership of your network | Can infringe, decided on the evidence | Interflora v Marks & Spencer, [2013] EWHC 1291 (Ch) |
| Ad offers copies or "replica" versions of your goods | Infringes a trademark with a reputation | Interflora v Marks & Spencer, C-323/09 |
Lush v Amazon, decided in the High Court on 10 February 2014, shows the line on one set of facts. Lush did not sell through Amazon. Amazon ads triggered by the keyword "lush" that named Lush bath bombs infringed, because a shopper would expect to find Lush products on Amazon. Amazon ads triggered by the same keyword that said only "Bomb Bath at Amazon.co.uk" did not, because shoppers are used to seeing competing ads next to a brand search.
Interflora v Marks & Spencer shows how hard the middle ground is. The High Court found in 2013 that M&S ads shown on searches for "interflora" infringed, because shoppers might think M&S was part of the Interflora flower delivery network. On 5 November 2014 the Court of Appeal set that finding aside for errors of law and sent the case back for a retrial.
How do I know if a competitor is bidding on my brand name?
Check from three places, and keep a dated record of each.
- Search your brand name on Google in a private browser window, from each country you sell in. Ads appear at the top and bottom of the results page, marked "Sponsored". Take a screenshot showing the search term, the ad and the date.
- Search the competitor's name or website in the Google Ads Transparency Center, which lists the ads an advertiser has run and where. It does not show which keywords triggered them.
- If you run your own brand campaign, open the auction insights report in your Google Ads account. It lists the other advertisers appearing in the same auctions as you, with how often their ads showed alongside yours.
The screenshots are your evidence. Ads change daily, and a competitor that receives a letter usually edits the ad before replying.
What can I do about it?
It depends on what the ad says.
If the ad text uses your trademark, complain to Google. Under Google's trademark policy, Google will review a complaint about a trademark in ad text and may restrict its use, but it does not restrict trademarks used only as keywords. Google accepts complaints only against specific advertisers identified by their URL.
If the ad confuses people about who is selling, send a cease and desist letter. It should quote the Google France test and attach your dated screenshots. A letter costs €379 in Spain and €179 in Bulgaria, and €200 an hour elsewhere. When a letter is the right step covers what happens next.
If the ad names only the competitor and sells only its own products, there is usually nothing to enforce. The practical answer is to bid on your own brand name, so your ad competes in the same auction.
Be careful with agreements. Two competitors agreeing not to bid on each other's brand names restricts how both of them advertise, and competition authorities look at these restrictions. The European Commission fined Guess €39.8 million on 17 December 2018, partly for banning its own retailers from bidding on Guess brand names in online search ads. Take advice before signing anything like it.
Do I need a registered trademark?
In practice, yes. Google France protects the owner of a trademark, and a registration is the proof that you are one. An EU trademark costs €1,530 all in for one class, including the €850 EUIPO fee, and covers all 27 member states. A UK trademark costs €715 all in.
If the competitor's ad points to a domain name containing your brand, that is a separate problem with its own remedy: a UDRP complaint, which can transfer the domain to you in about two months.