AdWords - manager held personally and jointly liable
01 February 2016
The Danish Maritime and Commercial High Court in Copenhagen recently passed a judgment in respect of the use of trademarks on Google AdWords and in this connection the court held the manager of the infringing company personally liable.
In this case the company Multikøkkener ApS had used the registered trademark "Eico" in the company's advertisements on Google in such a manner that the word appeared directly in the headings of the advertisements and in the actual advertising copy. In 2014 an injunction had been issued against the company owner's use of the trademark in internet advertisements for one of her other companies Køkken24 ApS, but she had nevertheless used the search word again - this time for her other company, Multikøkkener ApS.
During the case Eico A/S claimed that it had to be deemed an aggravating factor that an injunction had already been issued against the company owner's use of the trademark for her other company. In this respect Multikøkkener ApS claimed that it was merely comparative marketing because the company sells, among other things, products that are identical to Eico's products and that are also made by the same manufacturers.
The court established that the use of "Eico" as a Google AdWord resulted in a significant risk of confusion for the consumers and the use of "Eico" in the relevant advertisements was consequently contrary to the Danish Trademarks Act and the Danish Marketing Practices Act. It was not important to the assessment of the infringement that a number of the products that Multikøkkener ApS sells come from the same manufacturers that Eico uses.
In addition, the court found it unobjectionable to apply that the company's owner had either made or approved the decision to use the trademark unlawfully. The company and the manager were consequently the recipients of the injunction granted by the court and both the company and the manager were also ordered to pay a reasonable amount.
The judgment must be considered to be in line with current case law in respect of Google AdWords. In light of the manager's conduct and knowledge in the specific situation it seems correct that she is held personally liable for the infringement.
Read the judgment of the Maritime and Commercial High Court (in Danish)
During the case Eico A/S claimed that it had to be deemed an aggravating factor that an injunction had already been issued against the company owner's use of the trademark for her other company. In this respect Multikøkkener ApS claimed that it was merely comparative marketing because the company sells, among other things, products that are identical to Eico's products and that are also made by the same manufacturers.
The court established that the use of "Eico" as a Google AdWord resulted in a significant risk of confusion for the consumers and the use of "Eico" in the relevant advertisements was consequently contrary to the Danish Trademarks Act and the Danish Marketing Practices Act. It was not important to the assessment of the infringement that a number of the products that Multikøkkener ApS sells come from the same manufacturers that Eico uses.
In addition, the court found it unobjectionable to apply that the company's owner had either made or approved the decision to use the trademark unlawfully. The company and the manager were consequently the recipients of the injunction granted by the court and both the company and the manager were also ordered to pay a reasonable amount.
The judgment must be considered to be in line with current case law in respect of Google AdWords. In light of the manager's conduct and knowledge in the specific situation it seems correct that she is held personally liable for the infringement.
Read the judgment of the Maritime and Commercial High Court (in Danish)
