Court Affirms Infringement in Keyword Advertising Case

Just as 2024 was coming to a close, the Argentine Supreme Court ruled that the use of a well-known trademark as a keyword did not automatically constitute trademark infringement or an act of unfair competition and remanded the case to a lower court. Six months after this ruling, Division I of the Federal Court of Appeals unanimously reaffirmed the existence of trademark infringement and unfair competition in the case, which was the position Division III had previously adopted.

In the new ruling, Division I also found that Open Discovery used Organización Veraz’s well-known trademark as a keyword without authorization.

The Court analyzed how the presentation of Open Discovery’s ads in Google’s sponsored results misled consumers, creating an undue association with Organización Veraz. The sponsored link lacked clear indicators that would signal to users that the result was an alternative offering. Moreover, upon accessing Open Discovery’s website, no immediate visual or textual cues distinguished it from Organización Veraz’s.

The Court considered that a high likelihood of confusion existed since both parties provide the same services (commercial credit reports). That situation was supported by the large number of clicks obtained through this strategy by Open Discovery, a new and unknown competitor at the time.

According to the Court, Open Discovery deliberately used Organización Veraz’s trademark as a strategy to gain visibility in the same market and capitalize on the plaintiff’s established reputation and commercial investment. As a result, Open Discovery obtained an economic advantage by trading on the goodwill and prestige of a direct competitor.

The ruling clarifies what can be an infringement in keyword advertising but in the same way provides some insight on what could be non-infringing keyword uses, particularly where advertiser makes sufficient effort to distinguish its goods or services from those of the trademark holder. It nevertheless signals to businesses that visibility strategies in the digital marketplace must balance competitiveness with ethical and legal boundaries.

This ruling also reinforces the importance for trademark owners to remain vigilant in protecting their brands online, particularly as digital advertising practices continue to evolve.

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A version of this article was originally published in the INTA Bulletin on August 6, 2025.