AI Search Results with Trade Marks: When Is the Search Engine Liable – and When Not?
Anyone who searches for a well-known product with the help of AI today often no longer receives just a classic list of results. AI-powered search functions summarise content, answer questions directly and, in some cases, name cheaper alternatives, so-called dupes.
But what applies if an AI search names a well-known trade mark and, in that context, refers to sellers of product imitations? Can the trade mark proprietor assert a claim for injunctive relief against the search engine operator?
The Regional Court (LG) Berlin II had to deal with this question in connection with a well-known perfume and the search results of an AI (judgment of 1 June 2026, case no. 52 O 62/26). In doing so, it issued one of the first German decisions at the interface of AI search and trade mark law. The outcome: mentioning a trade mark in an AI-generated search answer does not automatically give rise to liability on the part of the search engine operator – neither under trade mark law nor under competition law.
What Was the Case About?
A perfume manufacturer took action against AI-generated overview and answer texts of a search engine. Users could, among other things, search for fragrance twins, so-called dupes, or for alternatives to specific branded perfumes. The AI then summarised content from third-party sites in which the branded perfumes were compared with dupes in a promotional manner, and linked to those sources. In addition, for search queries relating to specific fragrance imitations, advertisements labelled “Sponsored products” were displayed above the overview text.
The trade mark proprietor saw this as an infringement of its EU trade marks and additionally relied on competition law. It argued that the operator presented the trade marks and the references to dupe sellers as part of its own offering and benefited economically from users staying on the platform.
The LG Berlin II dismissed the application for a preliminary injunction.
Why No Infringement? – The Decision on Two Levels
The court examined – and rejected – claims under both trade mark law and competition law.
1. Trade Mark Law: No Use within the Meaning of Art. 9 of the EU Trade Mark Regulation (EUTMR)
A claim for injunctive relief under Art. 9 para. 2 (a) to (c) EUTMR requires that the party against whom the claim is asserted uses the trade mark itself. That was not the case here.
The decisive factor is the concept of use developed by the Court of Justice of the EU (CJEU). Use within the meaning of Art. 9 EUTMR requires active conduct and control over the act of use; the party against whom the claim is asserted must be in a position to direct the use of the sign. In addition, it must use the sign as part of its own commercial communication. The sign must appear, from the perspective of third parties, as an integral part of its communication and as belonging to its activity (CJEU, judgment of 22 December 2022, C-148/21 and C-184/21 – Louboutin; CJEU, judgment of 2 April 2020, C-567/18).
Anyone who merely creates the technical conditions for third parties to use a sign does not use it themselves – not even where they receive remuneration for doing so (CJEU, judgment of 23 March 2010, C-236/08 to C-238/08 – Google France, on keyword advertising).
The LG Berlin II applied this standard to the AI overview. Three considerations were decisive:
- No presentation as its own content: The operator does not present the answer and overview texts as its own content and does not adopt them as its own. A normally informed and reasonably attentive user can tell from the links, snippets and preview images that the AI merely represents a new search result format and summarises third-party content.
- No determining influence: The operator exerts no determining influence on the substantive result. What is decisive is which information published by third parties matches the query. The case decided by the Federal Court of Justice (BGH), Ortlieb I (BGH, judgment of 15 February 2018, I ZR 138/16), was different: there, the platform operator used trade marks as keywords in its own commercial communication and itself brought about the selection of the hits. No comparable influence was present here.
- Advertisements irrelevant: The display of sponsored advertisements does not change this assessment either. Advertisements are not part of the AI overview and answer texts. The fact that the operator is paid by advertising customers does not, under Google France, amount to use of its own.
Ultimately, the search engine creates the technical conditions for the visibility of third-party content. That does not make it a user of the trade mark itself.
2. Competition Law: No Competitive Relationship
The court also rejected claims under the Act against Unfair Competition (UWG) (§ 8 para. 1, para. 3 no. 1 UWG, §§ 3, 6 para. 2 nos. 4 and 6 UWG). The trade mark proprietor already lacked standing, because there is no specific competitive relationship between the parties within the meaning of § 2 para. 1 no. 4 UWG.
Even though, in principle, no high requirements are to be imposed on a specific competitive relationship, the goods or services offered must have a competitive connection with one another (BGH, judgment of 21 November 2024, I ZR 107/23 – DFL Supercup). That was lacking here: the applicant sells perfume, the respondent operates a search engine. The advantage of the AI function cited by the applicant – making the search engine more attractive compared with other search engines – has no competitive connection with perfume products.
The case therefore differs from the constellation in the Hotel Review Portal case (BGH, judgment of 19 March 2015, I ZR 94/13), in which the portal operator benefited directly economically by linking reviews with its own booking offers and was in direct competition with the hotels reviewed. Here, the operator derives no direct economic advantage from the texts complained of, since the links they contain to third-party sites are unpaid.
The court also denied an indirect competitive relationship on the basis of the promotion of third-party competition. The operator is not involved in the distribution of the alternative products, receives no remuneration for naming them and has no contractual relationship with the sellers. Any boost to sales operates at most as a reflex effect and therefore does not constitute a commercial practice in favour of a third-party business (cf. BGH, judgment of 9 September 2021, I ZR 90/20 – Influencer).
The Specific Design Remains Decisive
The decision of the LG Berlin does not place platform and AI providers outside trade mark and competition law altogether. The assessment may turn out differently as soon as an operator steps out of the role of a neutral search and intermediary entity. Under the criteria named by the CJEU in Louboutin, use by the operator itself becomes relevant in particular where an operator:
- presents third-party offers and its own offers uniformly,
- gives the impression that it sells the goods in its own name and for its own account,
- deliberately favours certain retailers or products – for example in favour of advertising or trading partners,
- supports the distribution of the goods in question organisationally (storage, shipping),
- visibly controls the selection of the sources used.
The yardstick remains whether a normally informed and reasonably attentive user makes a connection between the operator’s service and the product. The stronger this connection, the more likely the operator itself comes into focus.
Excursus: No Free Pass for Dupe Sellers
The judgment concerns the liability of the search engine. It does not mean that sellers of fragrance twins or other alternative products may use well-known trade marks as they please. On the contrary, the court expressly noted that the underlying third-party sites compare the branded perfumes with dupes in a promotional manner – this advertising by the sellers remains open to separate scrutiny.
Statements such as the following are particularly sensitive from a legal perspective:
- “Identical to the original”
- “Equivalent to brand X”
- “The original at a low price”
- “The perfect copy of brand X”
- “Brand X – only cheaper”
Depending on how they are framed, such statements may constitute an impermissible claim of imitation or equivalence in comparative advertising (§ 6 para. 2 no. 6 UWG) or amount to unfair exploitation of reputation or deception as to origin (Art. 9 para. 2 (c) EUTMR, § 14 para. 2 no. 3 MarkenG). What matters is whether a clear claim of imitation is made or whether associations are merely evoked – the dividing line lies here in the detail of the specific wording.
The fact that an AI search names or links to a seller therefore does not exempt that seller’s advertising from separate legal scrutiny.
Consequences for Trade Mark Proprietors
The central lesson lies in the right strategy. Anyone who finds that an AI search refers to dupes or problematic product comparisons should not act hastily against the search engine operator alone. Following the decision of the LG Berlin II, this route holds little promise of success, both under trade mark law (no use) and under competition law (no competitor status).
The viable point of attack regularly lies with whoever actually made the legally relevant statement:
- the manufacturer of the alternative product,
- the retailer,
- the operator of the linked website,
- the advertiser,
- the marketplace on which the product is offered.
A second core task is securing evidence. AI-generated answers change and cannot be reliably reproduced. A mere screenshot is rarely enough. Complete documentation is advisable, including
- the specific search query or prompt,
- date and time,
- language and location of the search,
- the complete answer text,
- the source box and all links,
- any advertisements displayed,
- the landing pages of the linked sellers,
- where appropriate, a video recording of the search process.
The more robustly the specific context is documented, the more readily it can later be assessed whether – and against whom – a use that is relevant under trade mark or competition law exists.
Consequences for Platform and AI Operators
For operators of search engines, platforms and AI-powered product searches, the decision shows that transparency and clean product design can make the decisive difference. Clear labelling of AI-generated content, visible sources, traceable links and a recognisable separation between organic search answers and paid advertising reduce the risk that users will understand the answer as the operator’s own product advertising.
Conversely, operators should examine whether internal control mechanisms could lead to individual sellers being favoured. It becomes particularly sensitive where advertising customers, trading partners or the operator’s own products visibly appear favoured in the results format – because it is precisely here that the boundary of use by the operator itself, as outlined in the decision, comes into play.
Conclusion
The judgment of the LG Berlin II shows two things: under trade mark law, AI-generated search answers are not automatically attributable to the search engine operator, as long as the operator does not steer the content and does not use the trade mark in its own commercial communication. And under competition law, the necessary competitor status is regularly already lacking as between the trade mark proprietor and the search engine operator.
For trade mark proprietors, it follows that they must identify the right respondent – as a rule the seller, retailer or advertiser – and document the AI outputs carefully. For platform and AI providers, it means taking transparency, source references and the separation of search results, advertising and their own offering seriously. And for sellers of fragrance twins, nothing changes: their own advertising remains open to legal scrutiny. The judgment is not a free pass for the use of well-known trade marks.
With AI-generated product recommendations, brand comparisons and search results, the specific design of the individual case regularly matters. We assess the prospects of success of a course of action and the choice of the right respondent under trade mark and competition law.
Do you feel that your trade mark and/or your products are being infringed by AI answers?
Frequently Asked Questions: AI Search Results, Trade Marks and Competition Law Infringements
My trade mark appears in AI search answers alongside imitations – can I stop this?
Yes, but as a rule not against the search engine. The LG Berlin II denied its liability (judgment of 1 June 2026, case no. 52 O 62/26): according to the LG Berlin, there was no use under trade mark law and no competitive relationship.
Against whom is the claim directed – the search engine or the seller?
Against whoever made the statement that is relevant under trade mark law. The platform is liable only if it steps out of its neutral role – for example by steering content, mixing its own and third-party offers or favouring partners. Choosing the wrong opponent leads to dismissal and a costs risk.
When does advertising for dupes using brand comparisons become impermissible?
It becomes critical once there is a clear claim of imitation or equivalence (“copy of X”, “identical to X”) – then § 6 para. 2 no. 6 UWG may apply, and unfair exploitation of the reputation of the well-known trade mark may also come into consideration (§ 14 para. 2 no. 3 MarkenG, Art. 9 para. 2 (c) EUTMR). A mere fragrance comparison is more likely to be permissible; what is decisive is the specific wording.
How can evidence be secured when AI answers keep changing?
A screenshot of the answer alone may be insufficient. The following should be documented: prompt or search query, date and time, language and location, the complete answer text, the sources with all links, advertisements displayed, the landing pages and, ideally, a video recording of the search process. In preliminary injunction proceedings, the infringing act must be substantiated (made credible).
When can I send a cease-and-desist letter?
It depends on three factors: the right respondent, robust substantiation and preserved urgency. Against the search engine, dismissal and a costs risk are to be expected; against sellers or advertisers, the prospects are considerably better. The legal basis of the claim and the opponent should be clarified before the first step is taken.
Would you like to know whether you can issue a cease-and-desist letter? Get in touch with us now and arrange a free initial consultation
