Advertising to a competitor’s customer base is nothing new. However, targeting those customers through social media algorithms is relatively new and raises questions about the legality of comparative advertising online.
Is it trademark infringement to put a competitor’s name in a hashtag? What about bidding on search terms or saying a brand name in a video? These digital advertising tactics can improve discoverability and help businesses reach a competitor's audience, but they also come with legal risks.
This article is for businesses planning comparative campaigns and brand owners responding to potentially unlawful advertising. It examines the legality of popular social media search engine optimization (SEO) strategies and what brand owners can do to protect themselves from potentially unlawful or misleading advertising on search engines, online marketplaces and social media platforms.
Meta tags, keyword bidding and hidden text: when do they amount to trademark use?
Text that is not readily visible to consumers generally presents a lower risk of infringement. This may include metadata or other content that impacts search results and algorithmic ranking.
Meta tags are one example. In 2009, the travel agency 411travelbuys.ca was sued for using a competitor’s name as a meta tag on its website. This strategy meant that people searching for “red tag vacations” might find 411travelbuys.ca instead. The case was dismissed, largely because the challenged meta tag was “hidden” from users. However, under different circumstances, the use of meta tags might be considered infringing. For a more thorough analysis of this case, please see our article on the Federal Court of Appeal’s decision.
Similarly, paying for your content to appear when users search for someone else is fair game. In 2011, Vancouver Community College sued Vancouver Career College for activities that included using Google AdWords to bid on the search term “VCC”. This part of the case was dismissed, with the Court of Appeal holding that “merely bidding on words, by itself, is not delivery of a message.” For a more thorough analysis of this case, please see our article.
Context shapes trademark risk in hashtag use
Using another party's trademark as one of several descriptive hashtags may be less likely to constitute trademark use than presenting it prominently as a source identifier. However, context remains important, and this rule of thumb may knuckle under the pressure of future decisions that place greater limits on such practices.
In the case of Dermaspark v Ipince, 2025 FC 946, a British Columbia service provider was sued for advertising OXYGENEO skin care services while allegedly using counterfeit OXYGENEO products and medical devices. The allegations included the defendant’s use of the hashtag #Oxygeneo on her Facebook page. The Court found that this specific activity was not infringing, as the hashtag was seen to be “a link … [that] directs a Facebook reader to the Oxygeneo content available on the internet.” The Court also found that “use of a hashtag as a link on a Facebook page constitutes marketing to the Plaintiffs’ benefit” (emphasis added). However, as (among other things) the Court’s decision arose from an exparte default judgment motion and the exhibit containing the hashtag was not described in the Court’s reasons, the Court’s treatment of the hashtag may have limited precedential value.
Including a hashtag among a list of industry words may make it more likely to be seen as an SEO tool and less likely to be seen as trademark use. In Lost Craft Inc v Direct Brewing Company, 2021 TMOB 168, a Toronto brewer claimed rights in #findyourcraft based on prior use in an Instagram post. The Trademarks Opposition Board found that the post did not constitute use “as a trademark” because the hashtag was not treated differently from other hashtags, such as #torontobeer and #comingsoon.
In contrast, a demolition company’s use of #NoNailLeftBehind was considered a trademark in two uncontested cases decided in 2024. Repeating the phrase consistently in marketing materials, social media posts and branded content helped establish it as a distinctive source identifier.
Being clear about your ownership of your account may also reduce the risk of infringement. In 2020, the clothing company Wanakome Inc. filed suit against rival clothing brand LIO, which added hashtags like #wanakome, #wanakomefamily and #wanakomehoodie to some of its Instagram posts. The Court dismissed its lawsuit because, among other reasons, the indicia surrounding the hashtags pointed to LIO as the source of the advertised goods, such that consumers would not think that the two companies were related: “the hashtags [were] used on an account with a handle and username of LIO, selling products marked with the LIO logo.”
Alt text should remain accurate and accessible
Alt text is a written description of an image. Alt text is not normally visible on the page, but screen-reading software can read it aloud. The words are typically generated by object recognition software. However, because platforms use alt text to provide users with relevant search results, there may be an incentive to manually edit the alt text to include popular search terms.
This mixed functionality puts alt text in a grey area from an IP perspective. If consumers rely on the alt text to understand what a product is, an inaccurate (or infringing) description could be unlawful. However, if the alt text is considered a hidden SEO tool, courts may treat it similarly to a meta tag. Including many popular search terms may lower the IP risk, though doing so may raise other problems, including from an accessibility perspective.
Visible comparisons and spoken brand references carry greater risk
Some activities, by their nature, should involve a lawyer’s review as a routine part of the process. Advertising with an explicit reference to a competitor’s brand is one of those activities. While “dupe” marketing and comparative advertising are common, that does not necessarily mean they are without risk.
A registered trademark can only be “used” by its owner, and advertising alone can sometimes constitute use.
Sharing inaccurate information about a competitor may also trigger liability under the Trademarks Act or the Competition Act. Even comparisons that are not malicious can be unlawful. In 2023, Gillette was sued for stickers on packaging that said its DURACELL batteries were 15% longer lasting than ENERGIZER batteries. The stickers were considered to “depreciate the value of the goodwill” in the ENERGIZER trademark.
Additionally, showing a competitor’s logo carries the additional risk that the advertisement may infringe the competitor’s copyright in their logo.
A properly planned campaign should consider applicable laws, guidelines and platform-specific policies
Trademark considerations are only one part of planning a digital advertising campaign. Businesses should also consider applicable advertising standards, accessibility requirements, jurisdiction-specific rules and the policies of the platforms on which the campaign will appear.
Brand owners should keep the broader legal landscape in mind and be aware that different rules may apply depending on where their content appears and how it is interpreted.
Before launching a campaign, businesses should consider:
- Accuracy and substantiation: Are the claims accurate, clear and supported by appropriate evidence, particularly where the campaign makes comparative or performance claims?
- Accessibility: Have website and digital accessibility requirements been considered?
- Jurisdiction: Where will the campaign be accessible, and could different legal or regulatory requirements apply in those jurisdictions?
- Platform rules: Does the campaign comply with the applicable platforms’ advertising and trademark policies?
- Overall presentation: Is it clear who is responsible for the advertisement and what relationship, if any, exists between the businesses?
- Trademark use: If the campaign refers to a competitor's trademark, does the reference constitute trademark "use" from a legal perspective, and, if so, is that use lawful?
Next steps for advertisers and brand owners
Building a campaign around another brand’s success is tempting, but it can create legal and reputational risks. The law often strikes a balance between protecting the goodwill of established brands and allowing for bona fide competition between brand owners.
Brand owners looking to combat problematic advertisements should ensure that their trademark portfolio is up to date and that their legal team is primed to spot and respond to legal breaches quickly. When in doubt, we recommend running the advertisement past legal counsel. While the fast-paced nature of social media makes it important to address problematic advertisements quickly, removing a competitor’s advertisement without good reason can backfire and lead to different legal problems.
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