Table of Contents
In Short
- Trade mark bidding is legal in the UK, but you must avoid misleading consumers or infringing on competitors’ IP rights.
- Comparative advertising is allowed but must be fair, verifiable, and avoid implying affiliation with competitors.
- Review platform policies and ensure compliance with local laws if advertising in multiple regions.
Tips for Businesses
When using trade mark bidding, ensure your ads are not misleading and that you do not misuse competitors’ trade marks. Stick to fair and verifiable claims in comparative advertising. Regularly check platform policies and legal requirements, especially if targeting multiple regions, to avoid penalties or account suspension.
Trade mark bidding is a recognised digital marketing strategy in the UK, but it is crucial to understand the relevant laws to avoid legal disputes. Trade mark bidding occurs when a business or individual bids on keywords that are trade marks or brand names of other companies on online advertising platforms. This causes their own advertisements to appear when users search for those terms. For example, a hotel business might bid on the term “AirBnB” so that their website appears at the top of search results when users search for that term. This article outlines the key legal considerations involved in trade mark bidding.
Trade Mark Infringement and Passing Off
Using trade mark bidding is a legitimate strategy in the UK to enhance brand visibility, but it is essential to respect your competitors’ intellectual property (IP) rights. These rights primarily arise from registered trade marks and “passing off” (a form of unregistered trade mark protection). Determining whether your advertisement infringes another’s rights can be complex and subjective. The key factors to consider include:
- whether consumers may be confused about the origin of your goods or services due to your advertisement;
- whether your trade mark bidding is conducted honestly and in good faith;
- whether your advertisement uses your competitor’s trade mark wording;
- whether your advertising implies an association or affiliation with your competitor’s business; and
- the reputations of both your business and that of your competitor.
For instance, using your competitor’s trade mark (e.g., “AirBnB”) in a way that suggests a false suggestion would be an illegitimate strategy. Infringing on a competitor’s IP rights could result in liability for lost profits or other financial losses. Additionally, you could receive an order to cease using their trade mark.
Consumer Protection and Comparative Advertising
The UK has specific laws to protect consumers from unfair or misleading trading. Comparative advertising is permitted in the UK in trade mark bidding, but certain restrictions apply. Comparative advertising involves comparing your business, goods, or services with those of another business. For example, an advertisement for washing-up liquid might claim its product is more effective than a competitor’s. If you plan to make a comparative claim as part of your trade mark bidding, ensure the comparison is fair, objective, and verifiable.
Similar to trade mark and passing off laws, you must ensure your advertisement does not mislead consumers about the origin of your goods or services. Additionally, they cannot suggest any affiliation between your business and a competitor’s.
LegalVision’s Trade Mark Essentials Guide provides valuable information for any business looking to register or enforce a trade mark.
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Platform Policies and Regional Issues
In addition to the considerations under UK law, you must check whether your chosen platform, such as Google Ads, has specific policies to be aware of. Additionally, know whether your advertising will extend to other countries with different laws to the UK. A platform’s policies may also vary by region and can change with little notice. Thus, you should regularly review the current policies in the regions you are targeting for advertising. Typically, platforms allow you to bid on a competitor’s trade mark as a keyword. However, the use of that trade mark in your advertisement text is permitted only in limited circumstances. If your advertisement does not comply with the platform’s policies, it may be disapproved, or your account could be suspended. Internationally, laws on trade mark infringement, comparative advertising, and consumer protection vary by region. Accordingly, ensure you research the relevant laws in each country where you plan to advertise.
Key Takeaways
Trade mark bidding can be an effective way to promote your brand visibility to targeted consumers. However, there are important legal considerations to navigate. You should:
- ensure the wording of your advertising is clear and not misleading to consumers;
- ensure any comparative claims are fair, verifiable, and made in good faith; and
- keep up to date with the advertising platform’s policies and any country specific laws which may differ from the UK’s.
If you need help understanding trade mark bidding, our experienced intellectual property lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Yes. Trade mark bidding, including bidding on your competitor’s brand names, is legal in the UK. However, you must comply with the laws on trade mark infringement and consumer protection laws. In addition, platforms such as Google Ads and Bing Ads will have their own policies, which you should comply with.
While it is not legally prohibited from using your competitor’s trade marks in your ad text, this carries a higher risk than simply bidding on those trade marks. This is because you may be considered as using their trade mark without their consent, and infringing on their IP rights. To avoid this, you should carefully consider the wording you use. Additionally, ensure that any use of their trade mark is fair, honest, and done in good faith.
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