AI-generated search summaries and trade marks: Berlin court refuses injunction over perfume “dupes”

[Marcel Pemsel]

AI-generated search summaries and trade marks: Berlin court refuses injunction over perfume “dupes”

Marcel Pemsel Thursday, June 18, 2026 - AI search summary, Guest post, Prof. Dr. Thomas Hoeren, trade marks, use

The IPKat has received and is pleased to host this guest contribution from Katfriend Prof. Dr. Thomas Hoeren (ITM Münster), who discusses a decision on the liability of the provider of AI-generated search summaries for trade mark infringement. Here is what Thomas writes: 

 

AI-generated search summaries and trade marks: Berlin court refuses injunction over perfume “dupes”

by Prof. Dr. Thomas Hoeren

 

On 1 June 2026, the Regional Court of Berlin II handed down an interesting decision at the intersection of trade mark law, search engines and generative AI. The case concerned AI-generated search summaries and AI-mode answers referring to perfume “dupes”, i.e. fragrance imitations or alternatives marketed by third-party providers. The claimant, part of a perfume and cosmetics group, relied on several EU trade marks registered for perfumes and sought interim injunctive relief against the operator of a search engine.

The application was dismissed. The court held that the search engine operator did not itself use the claimant’s trade marks within the meaning of Article 9 EUTMR. In the court’s view, the AI-generated texts merely summarised third-party content. They did not amount to the operator’s own commercial communication, nor did they create the impression that the operator itself was advertising, offering or distributing the perfume imitations.

The facts

The defendant operates a search engine and had recently added two AI-based functions. The first was an “AI overview” placed above the ordinary search results. It generated a summary of the search results and included links to the third-party websites from which the information was drawn. The second was an “AI mode”, in which users could ask questions and receive AI-generated answers based on search results identified as relevant by the search engine.

When users entered queries such as “name perfume dupes” or asked for dupes of specific branded perfumes, the AI-generated overview or answer text explained the concept of perfume dupes and listed examples of alternative fragrance providers. The text and accompanying boxes contained links, snippets and sometimes preview images leading to third-party websites. In some instances, sponsored products for branded perfumes or perfume dupes appeared above the AI overview.

The claimant argued that this went beyond ordinary search engine activity. According to the claimant, the defendant implemented, structured and presented AI-generated content as part of its own search environment. It allegedly controlled the algorithms, determined the presentation of the output and economically benefited from directing users towards dupe providers, some of which were said to be advertising customers.  

 

Jurisdiction: Germany only, not EU-wide

Before turning to the substance, the Berlin court dealt with international jurisdiction under the EUTMR. Since the defendant was established in Ireland, jurisdiction could not be based on Article 125(1) EUTMR. The German court’s jurisdiction followed only from Article 125(5) EUTMR, because the contested German-language AI results were directed at users in Germany.

The consequence was important: the court had jurisdiction only for acts committed or threatened in Germany. It had no power to issue an EU-wide injunction.

No use of the sign by the search engine operator

The central issue was whether the operator of the AI-enhanced search engine itself “used” the trade marks.

The court answered this in the negative. Referring to the case law of the Court of Justice of the EU (“CJEU”), in particular Google France and Louboutin, the court emphasised that trade mark use requires active conduct and direct or indirect control over the act of use. The sign must be used in the alleged infringer’s own commercial communication. Merely creating the technical conditions that allow others to use a sign does not suffice, even if the service is provided in the operator’s own economic interest.

Applying this standard, the court held that the AI-generated summaries did not constitute the defendant’s own trade mark use. The defendant did summarise third-party webpages in which the claimant’s perfume brands were compared with dupes. However, it did not itself steer the content of the individual AI answer in the relevant sense. Nor did the presentation suggest that the trade marks formed part of the defendant’s own commercial communication.

AI overview as a new search result format

A particularly important passage concerns user perception. The court considered that an average, reasonably well-informed and attentive user would understand the AI overview as a new form of search result presentation. The user would not expect the search engine operator to create its own substantive content about perfumes. Rather, the user would understand that the AI function summarised relevant information retrieved from third-party webpages.

The court attached weight to the presence of links, snippets and preview images. These elements made clear that the AI-generated text was connected to third-party sources. The court even stated that an express disclaimer or distancing statement was not required.

No decisive influence over the specific AI output

The court also rejected the argument that the use of generative AI changed the legal assessment. In its view, the decisive factor for the content of the AI-generated result was which third-party information matched the user query according to patterns and structures recognised by the system. The defendant did not, on the claimant’s submissions, select or prioritise particular sources in favour of its advertising customers.

The court distinguished the German Federal Court of Justice’s Ortlieb I decision. In that case, an internal search function on a sales platform was treated as part of the operator’s own commercial communication, because the platform itself caused the display of products by means of an automated evaluation of customer behaviour. By contrast, the Berlin court considered the AI-generated search result to depend on third-party information made available on the internet.

Sponsored products did not change the result

The claimant also relied on the fact that sponsored products appeared above the AI overview in some searches. The court was not persuaded. Relying on Google France, it held that the fact that a search engine operator receives remuneration for advertising does not, by itself, mean that the operator uses the trade mark in its own commercial communication. The same applies where advertising appears in the context of an AI-generated search result. According to the court, the operator still merely creates the technical conditions for the discoverability of certain webpages and improves the user experience of the search service.

No unfair competition claim

The claimant also relied on German unfair competition law, arguing that the AI-generated answers amounted to impermissible comparative advertising or at least promoted competing dupe providers. This failed at the threshold stage. The court held that the parties were not competitors. The claimant sells perfumes; the defendant operates a search engine. The alleged increase in attractiveness of the search engine had no sufficient competitive connection with the claimant’s perfume market.

Nor did the court accept a theory of indirect competition through the promotion of dupe providers. The links contained in the AI-generated texts were, according to the court, unpaid links to third-party websites. The defendant did not obtain a direct economic advantage from the mere inclusion of those links.

Comment

The decision is significant because it treats AI-generated search summaries, at least in this setting, as functionally closer to search results and snippets than to autonomous editorial or advertising content of the search engine operator.

This is a defendant-friendly approach. It avoids turning the operator of an AI search tool into the trade mark user whenever the system generates a text that contains third-party comparisons, rankings or product alternatives. The court’s reasoning preserves the traditional distinction between the use of a sign by advertisers or third-party website operators and the technical role of a search engine.

At the same time, the decision raises difficult questions. Generative AI search is not simply a list of blue links. It produces a synthetic text, places that text prominently above organic results and may present it in a way that users perceive as a direct answer rather than as a mere index. The more the platform designs the answer architecture, selects sources, ranks them, frames the response and monetises the surrounding environment, the more difficult it becomes to describe the operator as merely creating technical conditions.

The most contestable part of the decision is therefore the court’s assumption that the defendant did not exercise a decisive influence over the content of the AI output. In technical terms, AI search results are shaped by crawling, indexing, ranking, retrieval architecture, system prompts, safety rules, source selection criteria and product design choices. These are not necessarily neutral. The legal question is whether such structural influence is enough for trade mark use, or whether Article 9 EUTMR requires control over the concrete individual use of the sign in the specific output.

For now, the Berlin court takes the narrower view. The result is that trade mark owners may have to focus their claims on the third-party dupe providers whose websites are summarised or linked, rather than on the search engine operator generating the AI overview. A different outcome may be possible where the platform prioritises commercial partners, integrates purchase functionality, presents third-party products and its own services in a unified sales environment, or otherwise creates the impression that the trade mark is part of its own commercial offering.

The case is also a reminder that Louboutin is becoming a central reference point far beyond online marketplaces. Its test of whether a sign appears as part of the platform operator’s own commercial communication is now being applied to AI-generated search interfaces. That extension is doctrinally plausible, but it will require careful calibration. AI search interfaces sit somewhere between classic search, recommender systems, advertising infrastructure and editorialised answer engines. Trade mark law will have to decide how much platform design and algorithmic mediation is needed before “technical facilitation” becomes legally relevant use.

The Berlin decision is only an interim relief judgment and is limited to Germany. Nevertheless, it is likely to be cited in future disputes about AI search, brand comparisons and the liability of platforms for generative outputs. It offers a first German answer to a question that will not disappear: when an AI system says it, who, in trade mark law, is speaking?