Fragrance dupes in Google's AI Overview: no trade mark infringement

Scent twins in the AI overview

Anyone who types “name some scent twins” into Google first gets an automatically generated text from the “AI Overview” feature. It explains what scent twins are, lists well-known examples and names brands that sell such imitations. Anyone asking for the scent twin of a particular designer perfume receives a list of suppliers along with links to their websites. A perfume and cosmetics group wanted the courts to stop this and failed: the Regional Court of Berlin II dismissed its application by judgment of 1 June 2026 (case no. 52 O 62/26 eV), because Google does not use the trade marks itself and is not a competitor of the group either.

For some search queries, adverts for designer perfumes and for imitations appeared directly above the AI text under the heading “Sponsored products”. Alongside this there is the “AI Mode”, in which users put questions directly to the AI and receive answers based on third-party websites.

The group, which owns EU trade marks, applied for an interim injunction, that is, urgent proceedings in which a court decides quickly and only provisionally on a prohibition. Google was to refrain from advertising perfume products under the group’s trade marks in AI texts. The group relied on its trade mark rights and on competition law. The amount in dispute was 150,000 euros, and the group bears the costs of the proceedings.

Why Google does not use the trade mark

A trade mark is only infringed by someone who uses it as a trade mark, that is, who employs the sign as an integral part of their own commercial communication. According to the case law of the European Court of Justice, anyone who merely provides the technology with which third parties use a sign does not use it themselves, not even for payment. The court places the AI overview squarely in this category.

Google does not adopt the AI texts as its own. A normally informed and reasonably attentive user recognises that the AI features are merely a new format for search results. The many links, text extracts and preview images make it clear that the AI is summarising third-party websites, so an express disclaimer is not necessary. Nor does Google exert any determining influence over the content. Which brands and suppliers appear depends on which third-party information matches the query according to recognised patterns, without any selection by Google.

The adverts make no difference either. In the case of online sales platforms, the European Court of Justice assumes use of a trade mark by the operator itself where users believe that the operator sells the goods itself, for instance because of a uniform presentation and its own logo. With a search engine, nobody expects the operator to sell the products found. The very point of a search engine is to include as many contributions from the internet as possible. Taking money for adverts does not turn a search engine into a perfume retailer.

No competitive relationship with Google

The group got no further with competition law either. Claims for unfair advertising can only be brought by a competitor, that is, a business in a specific competitive relationship with the opposing party. The group sells perfume, Google operates a search engine. The fact that the AI texts make the search engine more attractive has, in the court’s view, no competitive connection with perfume products.

The position was different in a case concerning a hotel review portal decided by the Federal Court of Justice: there the portal operator earned money directly from the hotels being reviewed through its own booking offers. Google receives no payment for the links to the suppliers of imitations. The court also rejected an indirect competitive relationship, that is, the promotion of third-party competition. Google is not involved in the distribution of the perfume alternatives, has no contractual relationship with the suppliers and has no share in their sales. Any increase in the suppliers’ sales is at most an incidental side effect, which does not amount to a commercial practice within the meaning of competition law.

Different where facts are false

A few days before the Berlin decision, the Regional Court of Munich I imposed a prohibition on Google in another case. That case concerned a publishing house. Anyone searching for its name together with the word “scam” read in the AI overview that the publisher was known for dubious business practices. Alleged features such as subscription traps and debt collection demands were added. The allegations were untrue and partly based on mix-ups with other companies.

The Munich court did not regard this as a mere summary of search results but as statements by Google itself, and prohibited their dissemination. It did classify the assessment as an expression of opinion, but an opinion based on demonstrably false facts loses its weight against a company’s reputation.

The two courts assess the same feature differently: Berlin sees a new format for search results, Munich sees statements by Google itself. This is only partly a contradiction, because the questions are different. In trade mark law, what matters is whether Google uses the mark in its own advertising; in the law on statements, who is responsible for a false assertion about a company. Trade mark owners should therefore not assume that the Berlin approach also applies in other areas of law.

Consequences for trade mark owners

For companies with well-known brands, the Berlin decision is uncomfortable: the AI overview leads searchers straight to the suppliers of imitations, and this cannot be stopped through Google. The court, however, ruled only on Google, not on the suppliers of the scent twins. Anyone wanting to keep their brand out of such lists must, following the logic of the judgment, start with the third-party websites that the AI collects.

The reasoning also depends on facts that the court emphasises. Google receives no payment for the links, has no share in the suppliers’ sales and does not steer the content itself. A service in which the operator earns a share of the sales or deliberately selects the sources would have to be measured afresh against these criteria. For trade mark owners, it is therefore worth looking closely at how adverts, links and text interrelate in an AI service.

The judgment incidentally reveals a limit. Because Google is based in Ireland, the Berlin court had jurisdiction only over acts in Germany. Even if the application had succeeded, it could not have issued an EU-wide prohibition. Anyone taking action against a provider based in another EU country must plan for the reach of a German prohibition from the outset.