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Internet Search Engine Marketing

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As the internet is now a key source of business generation, the use of “keywords” becomes an important tool for many businesses in generating website traffic.

Recently the Federal Court handed down judgment in Australian Competition and Consumer Commission (ACCC) vs. Trading Post and Google Inc. The judgment has important implications for any business that promotes its brands on the internet and the use (or misuse) of “keywords”.

Background

In 2005, if a user entered the keywords “Kloster Ford” (a car dealership in Newcastle) into the search engine Google, they would find a “sponsored link” , (highlighted in a very pale cream/lemon colour on Google’s white search results background) to the Trading Post website.  If the user subsequently clicked on the sponsored link and landed on the Trading Post website, they would find no information or material about Kloster Ford.

The ACCC took action against Trading Post and Google on the basis that the publishing of an advertisement on Google that linked searches for the keywords “Kloster Ford” to Trading Post’s website was misleading and deceptive conduct and a breach of the (then) Trade Practices Act on the part of both Trading Post and Google.

Court decision

The Court held that Trading Post had engaged in misleading and deceptive conduct through the use of the Google Adwords to create a sponsored link.

The ACCC argued that by using the Google keywords, Trading Post represented that there was an association or affiliation between Trading Post and Kloster Ford.  Additionally, there was an implication that if a user required information about Kloster Ford, then they would be able to find that information via the Trading Post website, which was not the case.

The Court held that while Google was the provider of the technical facilities that permitted the advertisement to be viewed by the user, it did not follow that Google, who published the advertisement, had endorsed or adopted the information conveyed by Trading Post.  In short, Google was merely the publisher and as it was Trading Post who had determined what keywords should be used and not Google, Trading Post  was held to have contravened s 52 and s 53(d) of the TPA.

Implications for businesses

The ACCC v Trading Post and Google case has important implications for businesses that use keywords / search engine marketing and for those businesses wishing to protect their trade marks.

In our view, businesses that are using keywords and search engine marketing should:

  1. Review what keywords are being used to create online advertisements to ensure there is no implication of any association or affiliation with the intellectual property of a competing business that may be viewed as inaccurate or misleading;
  2. Review the results of keyword searches to ensure that the landing page of an advertisement will substantiate a genuine link between the business website and the advertisement; and
  3. Where a search leads to an advertisement and website that does not have a product or service available and the keyword search implies otherwise, the keyword search term should be amended.

Misuse of trade marks by competing businesses

It is increasingly apparent that the misuseof internet keywords by competing businesses poses a major challenge for businesses wishing to protect their intellectual property.

As the ACCC v Trading Post and Googlecase has demonstrated, using a competitor’s intellectual proerty in search engine marketing may give your competitor grounds for an action for misleading and deceptive conduct. Conversely, have you checked what your competitors are doing in relation to your company ‘s intellectual property? If a competitor is using your intellectual property as part of its online marketing strategy, you can take steps to remedy the situation.

In our view, all businesses need to be very attentive to online marketing activities particularly where it appears that a competitor may be engaging in misleading and deceptive conduct by the misuse of trade marks, products and brand names.

For further details or assistance with Intellectual Property matters, please contact Marianne Dunham, Special Counsel.

Send an email to Marianne