When users type a word in Google’s search engine there are two types of search results generated by Google. First is the organic search results which generate a series of webpages ranked by their popularity and relevance.
The second type is a list of sponsored links generated by Google’s Adwords program appearing on the right hand side of the page containing organic search result.
In Google Inc v Australian Competition and Consumer Commission (2013) 294 ALR 404, the High Court of Australia, dealt with the question of whether a broadcaster, search engine, operator or provider of a social networking site is liable for misleading and deceptive statement merely by communicating a misleading and deceptive statement of another entity.
What follows is an overview of deceptive and misleading statements by third party providers in the context of social media and Adwords.
Trademark Breaches and Google Adwords
Google successfully argued that its Adwords program was not liable for deceptive and misconduct representation subject to section 52 of the Trade Practices Act 1974 (Cth) (now section 18 of the Australian Consumer Law).
Following the 2013 decision of the High Court, Google changed its trademark policy. Google now allows multiple factors that determine when a trademark can be used in its Adwords ads. The idea is to allow businesses to attract potential clients from their competitors’ businesses and invite them to check their website.
Whilst Google’s trademark policy allows trademarks to be used in Adwords ad, the ad text may only use the trademarked term descriptively and in its ordinary meaning not in reference to the actual trademark.
This will potentially mean that trademark owners need to be mindful of other businesses using their trademarks in any manner that goes beyond a Google search result or in any way breaches section 18 of the Australian Consumer Law.
Similarly, the advertisers will need to take responsibility for what they want to appear in their advertisement.
Good Adwords ads could still be problematic for an advertiser even if when they are not conflicting with another business’s trademark.
ASIC issued a finance broker with $20,400 in penalties in compliance with two infringement notices issued by ASIC for breaching the law with false or misleading representation.
The finance broker used Google Adwords service which linked its company’s website at getapproved.com.au.
ASIC noted that the finance broker advertised an unconditional guarantee to the consumers inconsistent with responsible lending laws. ASIC decided that such advertisement may be deceptive to a consumer who would not have reasonable capacity to meet loan repayments.
Further, ASIC stated that it “… will continue to monitor both traditional and non-traditional media to ensure lenders and finance brokers are complying with the law in their marketing to consumers. We will take action where we identify ads that may mislead consumers.”
Trademarks are essential in protecting the intellectual property, the goodwill and the reputation of a business. Advertising another business’s trademark in Google’s Adwords ads may still infringe the Australian Consumer Law and may have serious legal consequences.
Therefore seek appropriate legal advice in respect to trademark advertising especially when using social media.
Pavuk Legal can provide you with a sound legal advice in respect of your existing trademarks or registering your new trademarks. We can assist you with how to protect your rights in relation to your business and trademarks as well as your claims for trademark infringements and the available remedies.
We can provide assistance for a range of related legal matters, including: business name registration, copyright and IP infringements, transferring buying and selling a business, lease agreements, asset protection, business management and administration and advice in relation to tax law including capital gain tax.
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