Newsletter Edition 31 - December 2021


Unfair competition and trademark infringement on sponsored links

There is a lack of clear rules regulating the use of sponsored links on the internet, where cases of trademark infringement and unfair competition occur, pointed out Paulo Parente Marques Mendes, a director of ABPI and lawyer Walter Capanema, participants in the debate on “Sponsored links and activation of advertisements on the Internet: unfair competition or consumer’s right to information?”. The event had the participation and coordination of the president of ABPI Luiz Edgard Montaury Pimenta, and the Judge of the Rio de Janeiro State Court of Appeals (TJ-RJ), Agostinho Teixeira de Almeida Filho.

Parente explained that, although the practice of sponsored links on search sites is lawful, it is necessary to further discuss the limits of this type of advertising. “Conflicts are starting to arise because of the lack of regulation”, he stated. The ABPI director presented jurisprudence on the matter in the Courts of Rio de Janeiro and São Paulo. At the TJ-SP, since 2016, the jurisprudence has been consolidated in the sense of recognizing that the use of registered trademarks as keywords in links sponsored by unauthorized third parties intending to divert customers characterizes an act of unfair competition.

In his presentation, Capanema spoke about Google’s search engine functioning from a commercial perspective. He pointed out the possibilities of abuse by the advertising network on sponsored links, including unfair competition, through evasive ads, fake news, and other frauds, such as excessive keywords, spam, viruses, etc. For the lawyer, the use of keywords targeted to third-party products “is a complex procedure” which can result in bad faith from the advertiser. “There is a need for better regulation of the use of sponsored links on the internet”, he said.