This content has been translated from the original text.
In the rapidly growing world of digital advertising, advertisements placed through keywords on platforms such as Google Ads can sometimes turn into practices that are misleading and capable of giving rise to unfair competition. Within the framework of the Turkish Commercial Code (TCC), such advertisements may bring with them legal problems such as unfair competition and misappropriation of reputation. The manipulation of internet users' search habits leads them to prefer the products or services of other companies, particularly in relation to companies that rely on brand trust; this is regarded as misleading advertising and may result in the infringement of commercial rights. This article addresses the legal dimensions of such practices in digital advertising and the consequences they may entail.
Google AdWords, now known as Google Ads, is Google's online advertising platform, which enables businesses to run advertisements in Google search results and on other websites affiliated with Google (YouTube, Gmail, etc.) in order to promote their products or services. In addition, through the Google Ads platform, display advertisements can be published on various websites, blogs or YouTube videos within Google's advertising network. Video advertisements can be shown in video format, particularly on platforms such as YouTube, while shopping advertisements enable e-commerce sites to have their products appear directly in search results or in Google Images. It is a system in which, in order to reach potential customers by means of keywords in searches made on Google, certain words are selected, and the advertiser's business appears with priority in the search engine results for advertisements relating to those words. Google Ads allows advertisers to target users according to criteria such as demographic data (age, gender), interests and geographical location, and by means of these targeting options the aim is to deliver advertisements to a more clearly defined target audience. In essence, in this article we will address the legal consequences arising from this practice.
By means of the said advertising method, businesses and brands may, by following a deceptive path towards third parties through the selected keyword, infringe trademark rights and give rise to unfair competition. This is because it creates the possibility for persons who do not hold a registered trade name or trademark right to advertise by paying for certain keywords. In other words, when a word associated with Company A, or identical to it, is typed into the search engine, Company B appears in first place through the said advertising technique, yet even after entering the site, the consumer fails to notice that the site belongs to Company B. In the present situation, Company B infringes the trademark right by exploiting Company A's recognition and thereby gives rise to unfair competition. It must, however, be emphasised that, in order for pecuniary or non-pecuniary compensation to be claimed, it is not required that Company B has made any sale. What matters is that it has caused confusion with the company's products and activities. Indeed, in its decision of 03.07.2013, Case No. 2012/12304 E., Decision No. 2013/14141 K., the 11th Civil Chamber of the Court of Cassation (Yargıtay) upheld the court's judgment granting the claim, on the grounds that confusion had arisen between the trademarks in the specific case and that the consumer would be misled, in a case in which the defendant's website appeared as an advertisement when the trademark held by the claimant was searched on the Google search engine, even though the defendant argued that the case had become devoid of subject matter because the advertisement had been removed immediately. In the case that was the subject of the decision rendered by the 11th Civil Chamber of the Court of Cassation (Yargıtay) on 12.12.2016 under Case No. 2015/12152 E., Decision No. 2016/9489 K., the claimant brought an action on the ground that, when the term constituting its own registered trademark was searched on the search engine, the defendant's website appeared before the claimant's own website and with the label "advertisement". The court, on the grounds that a consumer of average attention and knowledge would not be able to distinguish the relationship between the term and the claimant's and defendant's sites that appear when the term is searched, and that a connection between the two sites would be presumed, ordered that the defendant be prevented from using the claimant's term as a keyword and from having redirection and sponsored links appear in the search engine. The Court of Cassation (Yargıtay) upheld this judgment.
The responsibility of the search engines on which the said infringements take place for the occurrence of trademark infringement and acts of unfair competition is also of importance. The concept of a "hosting provider" set out in Article 2 of Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications defines Google's legal position. According to this definition, hosting providers are natural or legal persons who host or operate digital content and services. Article 5 of the same Law provides: "(1) A hosting provider is not obliged to control the content it hosts or to investigate whether an unlawful activity is taking place. (2) A hosting provider is obliged to remove from publication the unlawful content it hosts if it is notified in accordance with Articles 8 and 9 of this Law." In this regard, when Google's advertising policies are examined, it is seen that there is no general restriction on the use of trademarks as keywords. However, it is envisaged that such use may be restricted when a trademark is used directly in a competitor's advertisement, or when the advertisement presents the trademark in a manner that is misleading, deceptive or likely to cause confusion. In this context, where a trademark owner lodges a complaint that its trademark is being used for advertising purposes on the Google Ads platform, Google may assess the situation and impose the necessary restrictions.
Another assessment is that the Advertisement Board (Reklam Kurulu), at its meeting No. 343 held on 12 March 2024, examined advertising practices between companies using trade names and trademarks within the framework of advertising law and the principles of unfair competition. As a result of this meeting, it was decided that advertisements be suspended where a company's registered trade name and trademark were selected as keywords by another company on digital advertising platforms such as Google Ads, and the advertisements made with those keywords were presented in a manner that misleads consumers. The Board stated that where trademark owners' marks are used as keywords without permission, with the result that potential customers are misdirected towards the services or products of a brand that does not belong to them, this constitutes misleading conduct amounting to unfair competition. Advertisements that are not based on accurate and reliable information and that create a misleading impression on the consumer give rise to unfair competition. In this context, the Advertisement Board emphasised that misleading advertisements capable of influencing the consumer's decision-making process must be prevented, and decided that a suspension penalty be applied to such advertisements. The suspension of advertisements aims to prevent unfair competition between companies and to protect consumers' right to make decisions on the basis of accurate information.
In conclusion, advertisements made by using the registered trademarks and distinctive signs of others as keywords on digital advertising platforms such as Google Ads may, within the framework of advertising law, amount to misleading advertising and unfair exploitation of reputation. Such advertisements are capable of constituting unfair competition under the Turkish Commercial Code (TCC). The manipulation of searches carried out by consumers on the internet leads them, on the basis of the trust and reputation of the relevant brands and companies, to prefer the products or services of other companies or websites. This situation is regarded as a misleading advertising strategy and emerges as an act that harms the commercial rights of the companies concerned.
Furthermore, in the case law of the Court of Cassation (Yargıtay), it has also been held that similar types of advertisements, in addition to constituting an infringement of trademark rights, are contrary to the principle of comparative advertising, which must be carried out within the framework of the principles of fair competition. In this context, it is emphasised that comparative advertisements must be made solely on the basis of the principles of honesty, accuracy and fairness. Although the Advertisement Board did not assess the advertisements in question as comparative advertisements, it carried out an assessment by referring to Article 7 of the Advertising Regulation dated 07.03.2010, which regulates the principles of accuracy and honesty, Article 9, which regulates the advertiser's burden of proof, and Article 11, concerning unfair exploitation of reputation. The Board determined that advertisers bear responsibility in respect of the choice of keywords in advertisements made through Google Ads and similar digital platforms, and that the use of the registered trademarks of others without permission creates unfair competition. Since these decisions are in line with established case law and academic opinion, they are highly appropriate in terms of the principles of trademark law and advertising law.
A regulation of this kind aims to ensure that digital advertising is carried out in a correct and ethical manner and is regarded as an important step towards preventing unfair competition. In this context, protecting the rights of trademark owners and ensuring that consumers have access to accurate information without being misled are of great importance for competition to take place on a fair footing.
