Black Friday and Sponsored Links on Google Ads

Black Friday is one of the most anticipated dates for Brazilian consumers, marked by promotions and shopping opportunities. As a result, companies across various sectors intensify their marketing and pricing strategies to meet growing demand.

In digital marketing planning, it is not uncommon for companies to purchase competitors' trademarks as keywords in Google Ads. But is this practice actually legal? And what are the risks involved?

How Does Google Ads Work?

Google Ads is a powerful tool for connecting businesses with the right target audience at the exact moment consumers are searching for products or services. Through this platform, companies can select specific keywords to display relevant ads in search results.

For example, consider an appliance manufacturer that, after analyzing customer journey data, concludes that between November and February the product "air conditioner" will be the most searched for and, consequently, the top seller. To boost its visibility, the company decides to invest in a Google Ads campaign, purchasing not only the keyword "air conditioner," but also its competitors' trademarks.

As a result, when a consumer searches Google for an air conditioner—regardless of the specific brand searched—they may be directed to this manufacturer's website, even if they originally intended to visit a competitor's site.

Unfair Competition Law

Although this practice is common in the digital market, it can be deemed unlawful under Brazilian law. Article 195 of the Industrial Property Law (LPI – Law No. 9,279/96) lists acts that constitute crimes of unfair competition, including practices that mislead or confuse consumers regarding the origin of products or services. Using third-party trademarks as keywords can be classified not only as unfair competition, but also as trademark infringement.

Case Law and Judicial Precedents

Although there are a few decisions to the contrary,¹ the prevailing understanding of the Superior Court of Justice (STJ) is that using a competitor's trademark as a keyword in Google Ads can lead to:

Trademark dilution, impairing its capacity to exclusively identify the product or service;

Consumer confusion, by causing consumers to associate the advertised product with the competitor's product.

I Am Using a Competitor's Trademark as a Keyword. What Should I Do?

If your company is currently using a competitor's trademark as a keyword in Google Ads, it is advisable to take the following steps to mitigate legal risks:

Keyword exclusion (Negative keywords): Remove third-party trademarks from your campaign's keyword list.

Specialized legal counsel: Assess the compliance of current marketing practices against intellectual property laws and guidelines.

A Competitor Is Using My Trademark. How Should I Proceed?

If a competitor is improperly using your trademark, it is recommended to send an extrajudicial cease-and-desist notice requesting the immediate termination of the practice, seeking a faster and more effective resolution.

If the matter cannot be settled amicably, judicial protection can be pursued through lawsuits grounded in unfair competition, with the option to request preliminary injunctions to halt the practice immediately.

Conclusion

Although using competitors' trademarks as keywords in Google Ads is a common practice, it carries significant legal risks. Beyond potentially infringing on intellectual property rights, it may constitute an act of unfair competition. The best strategy is always to operate within legal boundaries, mitigating risks, avoiding litigation, and ensuring ethical market practices.

¹ Civil Appeal No. 1005238-28.2020.8.26.0019 | 1st Reserved Chamber of Business Law | TJSP (Court of Justice of São Paulo)