During its meeting in March 2024, the Advertisement Board examined sponsored advertisements placed by certain companies via Google Adwords/Google Ads, in which registered trademarks of competitor firms were used as keywords. Accordingly, the Board imposed a suspension penalty on advertisements where a company's trade name and trademark used to identify its services were selected as keywords by other companies, on the grounds that such advertisements were misleading to consumers.
Although there is no explicit legal provision regarding keyword preference in advertising law, the Board evaluated the relevant advertisements in accordance with Article 7 of the Advertising Regulation, which sets out the principles of truthfulness and honesty, the fundamental principles of advertising law requiring that advertisements should not mislead consumers, Article 9 concerning the advertiser's obligation for burden of proof, and Article 11 regarding unfair advantage gained from the reputation of others.
Accordingly, the Board determined that in promotions conducted via the Google Ads system, the selection of keywords is the responsibility of the advertiser. It ruled that advertisements created by selecting another company's trademark or trade name as a keyword were misleading to consumers and unfairly benefited from the trademark owner's reputation.
Within the scope of the Board's decisions, it was found that paid sponsored advertisements related to companies engaged in e-commerce/online retailing and on-demand broadcasting services were included in search results for the term "netflix" on Google's search engine. Furthermore, it was determined that consumers who clicked on these advertisements were re-directed to the advertiser's website, resulting in the opinion that these promotions were misleading and resulted in unfair competition. In one particular decision, the advertising company argued that the expressions appearing in the promotions may have resulted from the sale of "Netflix" branded products on its website. However, upon considering the association of another video streaming platform with Netflix in the advertisement visual, the provision of the same video streaming service by the advertiser, and the obligations of the advertiser in regards to keyword selection and titles entered into the system, the Board concluded that these advertisements were also misleading consumers.
Following their examinations, the Board decided to impose a suspension penalty against advertisers on the grounds that their advertisements were misleading consumers and caused unfair competition, in accordance with the Consumer Law and the Regulation.
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 Industrial Property Code expressly states 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 to create a commercial effect" constitutes trademark infringement.
Indeed, the Court of Cassation1 and the Regional Court of Appeal2 have also ruled that the use of another company's trademark as a keyword constitutes trademark infringement and unfair competition. Additionally, in its decision dated 12.12.2016, numbered E. 2015/12152, K. 2016/9489, the 11th Civil Chamber of the Court of Cassation ruled that the defendant's use of the plaintiff's trademarks as adwords/keywords in Google search engines was contrary to the principle that comparative advertising should be conducted within the framework of principles of fair competition.
These acts not only constitute trademark infringement but may also lead to unfair competition under the Turkish Commercial Code, as they manipulate consumer searches on the internet, exploiting the trust and reputation associated with the relevant firm and lead consumers to purchase goods or services from different companies or websites. Additionally, in Google Ads advertisements, whoever pays the highest price for a keyword, even if it pertains to another company's trademark, can appear at the top of the ad rankings. This situation can result in competitors gaining higher visibility in search results and brand owners having to pay high fees for their trademarks to rank higher, leading to adverse consequences. As recognised in the aforementioned Court of Cassation rulings, this form of advertising not only constitutes trademark infringement but also violates the principle that comparative advertising should be conducted within the framework of fair competition.
Although the Board did not evaluate these advertisements as comparative advertising, it made an accurate assessment under the relevant articles of the Regulation by determining that advertisers using Google Ads and similar services are responsible for keyword selection and that unauthorised use of a third party's trademark to promote their own goods and services constitutes unfair competition. We believe that these decisions of the Board align with judicial decisions and legal doctrine and are appropriate in terms of trademark and advertising law principles.
Footnotes
1. Court of Cassation 11th Civil Chamber's decision dated 2.11.2022, numbered E. 2021/3612, K. 2022/7681.
2. Istanbul Regional Court of Appeal 16th Civil Chamber's decision dated 4.10.2023, numbered E. 2021/2047, K. 2023/1355.
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