Advertising on Google
AdWords is Google's advertising platform. When businesses advertise with AdWords, they select words or phrases (called "keywords") that are related to their businesses, or their products or services. These keywords are used to create advertisements which are displayed in the form of "sponsored links" to the right, and above, the "organic" search results generated in response to a Google user's search request.
In the recent case of the Australian Competition and Consumer Commission (ACCC) vs. Trading Post and Google Inc, the ACCC challenged the use by Trading Post of the keywords "Kloster Ford", which was the name of a car dealership in Newcastle, as misleading conduct in breach of the then Trade Practices Act. When "Kloster Ford" was searched for using the Google search engine, this advertisement appeared:
Kloster Ford
www.tradingpost.com.au New/Used Fords – Search 90,000 +
auto ads online.
Great finds daily!
The ACCC's challenge
The ACCC argued that Trading Post's use of "Kloster Ford" in its sponsored link was misleading and deceptive as it represented that there was an association or affiliation between Trading Post and Kloster Ford and the ad suggested that information regarding Kloster Ford or Kloster Ford car sales could be found on the Trading Post website, when it could not.
What the Federal Court found
The Court held that while Google provided the technical facilities that permitted the relevant advertisement to be seen or heard, it did not follow that Google, by publishing or broadcasting the ads, had thereby endorsed or adopted the information conveyed. Consumers would understand that the message being conveyed to them was an advertisement from the advertiser, rather than the publisher.
The Court found that it was Trading Post that had engaged in misleading and deceptive conduct by causing the words "Kloster Ford" to be used by AdWords in generating "sponsored links", when there was no affiliation, or association between Trading Post and Kloster Ford, nor any information regarding Kloster Ford at www.tradingpost.com.au.
What this means for your business
This case is significant for all businesses that place advertisements through Google AdWords or other internet search engines.
In particular, you should ensure that any keywords selected for your AdWords campaign are not the product names, trading names or website addresses of a competitor, or you risk breaching consumer protection laws.
Businesses should also be vigilant about monitoring the use of their own business names, brand names and website addresses by their competitors.
Contributing author: Rebecca Currey, Graduate
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
