For contextual advertising by the names of competitors can now be fined 500,000 rubles
Almost at all courses directors are taught to set up advertising campaigns for competitors. You take the Chamomile company, put the competitorâs name âCornflowerâ in the keywords, and youâre done: the buyers are looking for the âCornflowerâ and come to the âCamomileâ website. The cost of a click is cheap, the leads are hot, the client is satisfied - a life hack, which Internet marketers are probably using in your company. But now such a life hack can be expensive.
This spring, a new Plenum of the Supreme Court came out. The Supreme Court in the trend of online advertising:
The fact is that when a company violates someone elseâs trademark, it violates the interests of not only the owner, but also the buyers of the goods. The owner suffers losses from the fact that buyers buy goods from a competitor. This also affects consumers: the quality of goods falls, and the price rises. Therefore, the antimonopoly service fines for harm to the market and consumers, and the court compensates the harm to the copyright holder.
Now the attack scheme on the intruder looks like this:
If you do not need courts and compensation and itâs enough for a competitor to simply turn off ads by your name, then you can write him that way. Itâs not necessary to go to the antimonopoly service at once and the court is completely optional: perhaps the competitor heeds common sense and simply disconnects the campaigns.
For example, we had such a story with Maxim Ilyakhov, the author of Glavred. One day, Maxim suddenly got an advertisement with a photo of his book âWrite, Cutâ, whose name we registered as a trademark. Maxim clicked on the link and, to put it mildly, was surprised: a photograph of his book led to the site of some unfamiliar copywriter.
This screenshot Maxim sent me then in Telegram. The link led to the landing of a webinar of some unfamiliar copywriter
Of course, Maxim did not like this situation: he tried, wrote a book, printed it himself, and then some unknown person is announced and due to his work attracts the attention of the audience. The story ended quickly: one call was enough for the copywriter to apologize and lose all the ads.
If the intruder did not respond, you can submit a request to Yandex and Google. However, in my practice, Yandex almost does not respond to such complaints and often invites the parties to investigate the court. But sometimes it happens, and vice versa: Yandex in response says that such matters do not seem to concern him, but the ads themselves have already disappeared. Magic, not otherwise.
Summary of response: âAll but one of the ads no longer works, but we are not here to deal, so the next time contact the advertisers.â But we are okay, the main thing is the result
Google reacts much more quickly and often stops ads immediately. If Google did not agree the first time, submit it a second time. It seems that complaints sent to Google each time get to a new moderator who can make the decision you need. The same story, by the way, with YouTube: it also happens that a video that violates copyright or trademark rights is blocked only from the third call.
Before contacting lawyers, you can fill out a complaint yourself on Google
If neither the intruder nor the advertising platform responded to your requirements, then it means that you can go to court.
In general, such courts existed before the new Plenum, but real penalties were a rarity. For someone to really be fined, two stars had to converge in the case - an advanced judge and a convincing lawyer. Now only the second is enough.
One of the first swallows under the number A28-10965 / 2016 flew to the court back in 2016. In this case, one flower shop was advertised in Yandex by the name of another. This was one of the first cases when the court indicated as a violation not only the trademarks in the headings, but also the trademarks in the keywords. The court collected 513 thousand rubles from the offender.
The intruder was stunned by these situations and went to appeal the decision in the hope of reducing compensation. But neither the appeal, nor the cassation, nor the Supreme Court experienced pity and the final decision in 2018 left the penalty in force.
In another case, the court collected 550 thousand rubles from the offender for compensation to the right holder and another 390 thousand rubles in compensation for the costs of paying for the services of lawyers who won the case in the appeals instance and kept it in two other instances. It turns out that advertising fire extinguishing installations cost the intruder almost a million rubles. At the same time, in the first instance, the plaintiff was initially denied a fine, but the appellate court described in great detail why the use of trademarks in keywords is a violation.
Such matters are gradually becoming more and more. Courts already even know what bidders are: their companies attract courts by third parties.
You canât carry out the trial with the argument âOh, itâs some kind of freelancer who set us up for us, we didnât even knowâ. There were such cases, however, the court says that your account is being advertised, you pay Yandex as well, so it doesnât matter to you who set up the advertisement there. Even if the company has an agreement with a freelancer, she will pay.
In the event that a domain is registered for one company, and another is advertised on it, those who sell goods on the site are fined. The main thing is that the domain owner must prove in court that he is not related to the company. For example, such cases occur when the domain is registered by a company that provides website development services.
It is unlikely that a notary public will read articles on fire extinguishers for half an hour in order to wait until he gets the corresponding YAN announcement somewhere. And even in this case, if a competitor does not have a UTM tag with your name in the announcement link, then we wonât understand why the YAN showed us his announcement.
Although the UTM tag is also a guarantee that your competitor uses your name. A UTM tag is a variable that the director puts at his discretion. He can easily replace the conditional âAlphaâ with âal1â: this will not affect the campaignâs impressions, but we will never guess why this announcement was shown to us.
It seems that competitor campaigns in YAN for the time being can not be turned off. Nobody has been fined for them yet, and it will be practically impossible to prove a violation in which case. But if that - I did not tell you about it ;-)
While fashionable entrepreneurs take photos with rented Lamborghini in Dubai, I deal with problems that are not blogged about successful success. I'm a lowyer. I work only with business: trademarks, patents, franchises, contracts, disputes, courts and all that.
In the Telegram channel " Business Lawyer " (@bchlaw) I analyze the mistakes of entrepreneurs who contacted me. I am annoyed by business publications with copy-paste from plastic American books, trivial tips and quotes of laws on sheet A4. Instead, I talk about what happens in real life - where the problems of ordinary Russian entrepreneurs and small companies come from, how these problems are solved and how to not get involved in them at all. Perhaps my publications will help some of the readers not to step on strangers rake and save money, time and nerves.
What's new in the law
This spring, a new Plenum of the Supreme Court came out. The Supreme Court in the trend of online advertising:
Paragraph 172. The use by an advertiser when placing contextual advertising on the Internet as a criterion for displaying an advertisement of keywords (phrases) that are identical or similar to the point of confusion with an individualization tool belonging to another person, taking into account the purpose of such use, may be recognized as an act of unfair competition (article 14.6 of the Federal Law on the Protection of Competition, article 10.bis of the Paris Convention).Let's translate this from legal to human:
If a company is advertised in search networks for queries that match the names of competitors or are too similar to them, then this is unfair competition and this can be punished.What does it mean. For unfair competition using other people's trademarks they beat twice: first, the Federal Antimonopoly Service fines the company, a fine from 100 to 500 thousand rubles under Art. 14.33 Administrative Code of the Russian Federation , then the copyright holder goes to court and seeks compensation for the use of another's trademark from 10 thousand to 5 million rubles under Art. 1515 of the Civil Code of the Russian Federation .
The fact is that when a company violates someone elseâs trademark, it violates the interests of not only the owner, but also the buyers of the goods. The owner suffers losses from the fact that buyers buy goods from a competitor. This also affects consumers: the quality of goods falls, and the price rises. Therefore, the antimonopoly service fines for harm to the market and consumers, and the court compensates the harm to the copyright holder.
Now the attack scheme on the intruder looks like this:
- The copyright holder submits a complaint to the FAS.
- FAS conducts an audit and fines the offender.
- The copyright holder goes to court with a decision of the FAS and a claim for compensation.
- The court seeks compensation from the violator in favor of the copyright holder.
- The bank debits the money from the account of the violator and transfers it to the copyright holder.
What to do if someone is advertised by your name
If you do not need courts and compensation and itâs enough for a competitor to simply turn off ads by your name, then you can write him that way. Itâs not necessary to go to the antimonopoly service at once and the court is completely optional: perhaps the competitor heeds common sense and simply disconnects the campaigns.
For example, we had such a story with Maxim Ilyakhov, the author of Glavred. One day, Maxim suddenly got an advertisement with a photo of his book âWrite, Cutâ, whose name we registered as a trademark. Maxim clicked on the link and, to put it mildly, was surprised: a photograph of his book led to the site of some unfamiliar copywriter.
This screenshot Maxim sent me then in Telegram. The link led to the landing of a webinar of some unfamiliar copywriter
Of course, Maxim did not like this situation: he tried, wrote a book, printed it himself, and then some unknown person is announced and due to his work attracts the attention of the audience. The story ended quickly: one call was enough for the copywriter to apologize and lose all the ads.
If the intruder did not respond, you can submit a request to Yandex and Google. However, in my practice, Yandex almost does not respond to such complaints and often invites the parties to investigate the court. But sometimes it happens, and vice versa: Yandex in response says that such matters do not seem to concern him, but the ads themselves have already disappeared. Magic, not otherwise.
Summary of response: âAll but one of the ads no longer works, but we are not here to deal, so the next time contact the advertisers.â But we are okay, the main thing is the result
Google reacts much more quickly and often stops ads immediately. If Google did not agree the first time, submit it a second time. It seems that complaints sent to Google each time get to a new moderator who can make the decision you need. The same story, by the way, with YouTube: it also happens that a video that violates copyright or trademark rights is blocked only from the third call.
Before contacting lawyers, you can fill out a complaint yourself on Google
If neither the intruder nor the advertising platform responded to your requirements, then it means that you can go to court.
In general, such courts existed before the new Plenum, but real penalties were a rarity. For someone to really be fined, two stars had to converge in the case - an advanced judge and a convincing lawyer. Now only the second is enough.
One of the first swallows under the number A28-10965 / 2016 flew to the court back in 2016. In this case, one flower shop was advertised in Yandex by the name of another. This was one of the first cases when the court indicated as a violation not only the trademarks in the headings, but also the trademarks in the keywords. The court collected 513 thousand rubles from the offender.
The intruder was stunned by these situations and went to appeal the decision in the hope of reducing compensation. But neither the appeal, nor the cassation, nor the Supreme Court experienced pity and the final decision in 2018 left the penalty in force.
In another case, the court collected 550 thousand rubles from the offender for compensation to the right holder and another 390 thousand rubles in compensation for the costs of paying for the services of lawyers who won the case in the appeals instance and kept it in two other instances. It turns out that advertising fire extinguishing installations cost the intruder almost a million rubles. At the same time, in the first instance, the plaintiff was initially denied a fine, but the appellate court described in great detail why the use of trademarks in keywords is a violation.
How to live with it further
Such matters are gradually becoming more and more. Courts already even know what bidders are: their companies attract courts by third parties.
You canât carry out the trial with the argument âOh, itâs some kind of freelancer who set us up for us, we didnât even knowâ. There were such cases, however, the court says that your account is being advertised, you pay Yandex as well, so it doesnât matter to you who set up the advertisement there. Even if the company has an agreement with a freelancer, she will pay.
In the event that a domain is registered for one company, and another is advertised on it, those who sell goods on the site are fined. The main thing is that the domain owner must prove in court that he is not related to the company. For example, such cases occur when the domain is registered by a company that provides website development services.
Almost all directors know about setting up advertising by competitors. Mostly they switch to competitor advertising when they have exhausted all the traffic on hot demand and thereâs nowhere to expand the campaign. Then a simple increase in interest rates will not give effect and new methods have to be applied, including such. Although sometimes it happens that all ads are twisted only by competitors. For example, it makes sense in advertising software development services - there are almost no targeted requests there, you have to turn around your competitors.In the case of advertising on the search, the violation is obvious and easy to fix: the notary opens Yandex, enters a request with your name and takes a screenshot of all competitors that spin by your name. In the case of YAN, for the time being, itâs really not clear how to detect a violation.
Probably, itâs right that the law prohibits advertisements under the names of others. But there is one caveat: all the court decisions that Alex showed, describe precisely the cases of advertising on competitors in the search. So far I have not seen a single case where a company would be punished for advertising on competitors in the Yandex Advertising Network (YAN).
Perhaps this is due to the fact that from the outside it is almost impossible to determine the reason for the ad to appear in YAN. Unless you can see the UTM tags, but itâs not a fact that it will help: the director may simply not put the UTM tags on such campaigns. Of course, in this case, it will not be possible to track analytics by keywords, but the campaign will work properly.
Vladimir Safonov
contextual advertising specialist, head of the Internet marketing agency Leadconvert
It is unlikely that a notary public will read articles on fire extinguishers for half an hour in order to wait until he gets the corresponding YAN announcement somewhere. And even in this case, if a competitor does not have a UTM tag with your name in the announcement link, then we wonât understand why the YAN showed us his announcement.
Although the UTM tag is also a guarantee that your competitor uses your name. A UTM tag is a variable that the director puts at his discretion. He can easily replace the conditional âAlphaâ with âal1â: this will not affect the campaignâs impressions, but we will never guess why this announcement was shown to us.
It seems that competitor campaigns in YAN for the time being can not be turned off. Nobody has been fined for them yet, and it will be practically impossible to prove a violation in which case. But if that - I did not tell you about it ;-)
findings
- Now, for advertising on the Internet at the request with the names of competitors' trademarks, the FAS can be fined 100-500 thousand rubles, and the court can recover compensation from 10 thousand to 5 million rubles. All 5 million rubles, of course, are not exacted, but 500-700 thousand - completely.
- If someone is advertised by your name - send him a claim.
- If the claim does not work, file a complaint with the search engines.
- If the search engines did not respond, contact the court.
- In order not to become a defendant in such a case, call your director and ask them to stop advertising campaigns for competitors on the search. Well, it's not worth it, chesslovo.
While fashionable entrepreneurs take photos with rented Lamborghini in Dubai, I deal with problems that are not blogged about successful success. I'm a lowyer. I work only with business: trademarks, patents, franchises, contracts, disputes, courts and all that.
In the Telegram channel " Business Lawyer " (@bchlaw) I analyze the mistakes of entrepreneurs who contacted me. I am annoyed by business publications with copy-paste from plastic American books, trivial tips and quotes of laws on sheet A4. Instead, I talk about what happens in real life - where the problems of ordinary Russian entrepreneurs and small companies come from, how these problems are solved and how to not get involved in them at all. Perhaps my publications will help some of the readers not to step on strangers rake and save money, time and nerves.
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