The STJ considered it appropriate to consider unfair competition the practice of a company that, when contracting a sponsored link with a certain search provider, used keywords identical to the brand of a competitor in the same commercial sector.
The rationale behind the decision is the protection of the brand, which consists of a distinctive means of products and services provided by a given company, and which is granted special protection by the Industrial Property Law, precisely because it allows the identification and individualization of that company by customers.
Therefore, anyone who hires a sponsored link service to direct consumers of a product or service to their link, through the use of keywords that reference a competitor’s brand, will be committing the crime of unfair competition.
Thus, according to the STJ, unfair competition will occur when:
– The sponsored link is contracted to capture a keyword that matches the registered trademark or company name;
– The service contractor operates in the same field as the owner of the brand or business name; and
– The use of the brand or name as a keyword may cause confusion among consumers between the products and services of the brand/name owner and those of the company that has contracted the sponsored link.
This way, companies gain an important precedent in defending their brand and corporate name, allowing them to go to court to prevent improper use by competitors and prevent their consumers from being “diverted” to sponsored links in an undue manner.
