Google Adwords - Use of competitor’s adword prohibited in The Netherlands

Following the European Court of Justice’s decision in the Louis Vuitton case, Google has changed her Adwords policy. It is now possible for a company to buy their competition’s trademark as an Adword for the promotion of their own website. Google believes this is allowed, but is this really so? The first court decisions on Google Adwords seem to indicate it is not. In both Denmark and the Netherlands the courts have decided that you are not allowed to use someone else’s trademark as an Adword.

The Dutch case centered around the admissibility of the use of the Adword TEMPUR by competitor Energy+. TEMPUR sells special matrices and pillows made of a particular Styrofoam. Energy+ sells these type of matrices as well and tried to lead traffic to her website by using TEMPUR as a metatag on some of her web pages, as well as using TEMPUR as an Adword. The court decided the case on the basis of comparative advertising. Since Energy+’s ads did not adhere to the strict European regulations on comparative advertising, Energy+ was acting unlawfully. Comparative advertising is only allowed when the products involved (in this case TEMPUR and Energy+) are directly and clearly compared. Of course, that cannot be the case in a Google advertisement. Energy+ was prohibited to further make use of the Adword TEMPUR and was ordered to pay damages of € 9,500.-

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PURE - MENTOS

MENTOS has been selling chewing gum under the name MENTOS PURE FRESH for several years. In order to protect her rights MENTOS has registered the following trademarks: the logo MENTOS PURE FRESH, the logo MENTOS PURE FRESH 3 and a figurative depiction of the word PURE. Defendant sells chewing gum under the trademark DENTYNE PURE and has registered its logo as a trademark. Infringement or not?
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