Updated May 31, 2023.

Keyword advertising has gained popularity worldwide. However, the use of competitors’ trademarks in keyword advertising has sparked conflicts between companies, and Courts from different jurisdictions have adopted varied interpretations of this practice.

In Brazil, although there is no specific law forbidding the use of third-party trademarks in keyword advertising, the Superior Court of Justice has ruled on several cases, establishing a consistent understanding that this behavior constitutes unfair competition. This is in line with Article 195, III of the Brazilian Intellectual Property Law, which states: 

Article 195 – A crime of unfair competition is committed by anyone who uses fraudulent means to divert another’s clientele for their own or a third party’s benefit.

In these cases, the Courts have ordered the immediate cessation of the unauthorized use of keywords and have awarded compensation for both moral and material damages to the trademark owners. Typically, these compensations amount to no more than BRL 20,000. However, in some instances, depending on the size of the companies involved, the compensations have exceeded BRL 50,000.

In view of the scenario above, it is highly advisable to refrain from using third-party trademarks in keyword advertising in Brazil, even though there is no specific prohibition on this matter.

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Author:  Carollina Souza Marfará, Cesar Peduti and Thaís de Kássia Almeida Penteado, Peduti Advogados.

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“If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.”

“Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.”