Trademark infringement is no longer limited to visible uses on packaging, signs, catalogues, or websites. A recent Turkish decision has illustrated how the use of competitors’ trademarks as keywords, search terms, redirecting codes, or other Google Ads parameters can give rise to disputes at the intersection of trademark and unfair competition law.
The case concerned two competitors in the insurance brokerage sector. The plaintiff alleged that the defendant had bid on the plaintiff’s registered trademarks through Google Ads. Consequently, when users searched for those marks, the defendant’s website appeared among the first results as a sponsored advertisement. The court upheld the trademark infringement claim after considering expert reports, the records of an on-site inspection at the defendant’s premises, and the defendant’s failure to submit evidence within its exclusive control.
The first expert report found that the plaintiff’s website had ranked highly before the disputed conduct. After the relevant date, the defendant’s website began appearing and later ranked above it. This demonstrated the commercial effect of digital advertising. Even where the trademark owner ranks first organically, sponsored advertisements appear above organic results. A consumer searching for the plaintiff’s mark may therefore enter the competitor’s website first. The plaintiff may lose traffic, clicks, visibility, and potential customers, while the defendant benefits from the mark’s reputation, advertising power, and goodwill.
Article 7/3(d) of the Turkish Industrial Property Code (Law No. 6769) allows a trademark owner to prohibit the unauthorised use of an identical or similar sign online in a manner creating a commercial effect, including as a domain name, redirecting code, keyword, or similar designation.
Using a trademark as a keyword, search term, targeting parameter, or redirecting element in Google Ads generally creates a commercial connection between the consumer’s search and the advertiser’s website. When a competitor’s advertisement is prominently displayed after the trademark is searched, the mark is being used online with commercial effect.
The defendant argued that it had not directly selected the plaintiff’s marks as keywords. However, experts observed that entering the plaintiff’s mark into Google caused the defendant’s sponsored website to appear at the top of the results. They also explained that similar outcomes may arise without a directly selected keyword through broad match, close variants, automated targeting, or Performance Max campaigns. During the court-ordered inspection, however, the defendant refused to disclose its campaign data, search terms, match types, negative keyword lists, and performance reports, claiming that they constituted trade secrets.
Burden of proof in Google Ads disputes
The most significant aspect of the decision concerns the burden of proof. Relying on the approach of the 11th Civil Chamber of the Court of Cassation, the court held that once the plaintiff showed that the defendant’s sponsored website appeared when the plaintiff’s trademark was searched, the defendant had to disclose which search terms it had purchased and prove that it had not targeted the registered marks.
This approach is justified because Google Ads campaign data is held exclusively by the advertiser. The trademark owner and the court cannot ordinarily access it. The plaintiff can generally demonstrate only the external effects of the conduct:
That the defendant’s advertisement appears following a trademark search;
That the plaintiff’s visibility decreases; and
That the defendant’s website moves ahead of it.
The importance of the ruling does not depend on the precise technical mechanism that caused the advertisement to appear. Recently, Google Ads systems may produce the same result through automated or algorithmic methods without an exact keyword being manually selected. Nevertheless, advertisers can monitor the searches triggering their campaigns, review search-term reports, and add negative keywords to prevent matching competitors’ marks.
An advertiser that knows, or should know, that its advertisement appears following searches for a competitor’s trademark may therefore be expected to take preventive measures. This may also follow from the obligation under Turkish commercial law to act as a prudent merchant. However, the court accepted the trademark infringement claim but rejected the unfair competition claim. It relied on recent Court of Cassation decisions according to which trademark infringement and unfair competition claims should not both be upheld in relation to the same conduct.
Trademark infringement and unfair competition
In the authors’ view, the above approach interprets the principle of cumulative protection too narrowly. Not every act of trademark infringement automatically constitutes unfair competition. However, the conduct in this case went beyond interference with the trademark owner’s rights.
Trademark law primarily protects the proprietor’s exclusive right arising from registration. Unfair competition law also protects honest and undistorted competition, consumer choice, and the proper functioning of the market. These protected interests do not always fully overlap. The use of a competitor’s trademark in Google Ads affects not only the exclusive right to use the trademark but also consumer search behaviour, online visibility, digital advertising costs, and fairness between competitors. For this reason, the unfair competition claim should have been examined separately and independently.
