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Google Wins Australian High Court AdWords Battle

February 6, 2013

SEOIt’s probably not such a surprising outcome – Google has just won an appeal in Australia’s highest court overturning a Federal Court decision that it had engaged in misleading or deceptive conduct in relation to its AdWords product (see a PDF of the High Court’s press release). The original action had been brought by the Federal Government’s Australian Competition and Consumer Commission on behalf of companies using competitor’s trademarks and brand names in Google AdWords so that their pages appeared in the ‘Sponsored Links’ section at the top of Google’s search results.

While the individual action of companies to use their competitors’ registered trademarks in such a way is clearly a breach of the trademark holder’s intellectual property rights, the High Court found – unanimously – that Google itself was not in breach.

As someone on the receiving end of trademark breaches like this – when I was part of an in-house marketing team, every other week we were firing off legal letters and emails to both Google and the company misusing our trademark – it was incredibly frustrating to be bringing up the same complaint with Google asking them to remove the offending AdWord, knowing that Google was pocketing revenue every time that trademark was appearing in searches.

Now, with this result, there is even less of a reason for Google to act promptly when it receives a complaint about AdWords from the legitimate trademark holder. Of course, trademark holders still have recourse to contact the offending advertiser directly, or to take legal action against them, but it’s potentially a very time-consuming and laborious process.

In the short-term, the best advice is vigilance. You should be checking your trademarks weekly in Google searches, and firing off emails and legal letters when you see it in use by one of your competitors. To make things easier, ask your legal team or your legal adviser to draft up a template for you – that way you can just drop in the new company name and contact details each time you need to send.

In the long-term (and I’ve thought about this a lot in the past) how do we get better protection for our brands and trademarks online? Companies like Google have no incentive to act. The more people using AdWords or other similar products, the more money they make. The only way we can make it work is to use technology smartly. It should be possible to integrate the databases of government intellectual property agencies around the world with the main search engine providers, and develop a program that checks submitted words and phrases used by advertisers against the database. If the trademark holder’s details in the specific country or countries don’t match with the advertiser’s details, put the onus on the advertiser to prove otherwise.

Chance of that happening in real-life? Doubtful.

For more news and analysis on the decision, see:

(Pictured above: “Search-Engine-Marketing”, By Danard Vincente, available under a Creative Commons Attribution 2.0 Generic (CC BY 2.0) licence.)

3 Comments leave one →
  1. February 6, 2013 7:22 pm

    Fantastic article. You highlight the frustrations many trademark and copyright holders have around the world with protecting their content and branding online. Keep up the good work!

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