Tuesday, April 10, 2012

ACCC Vs Google

The Australian ACCC is a government agency (kind of like the FTC in that they manage competition/truth in advertising etc they also play the legal role similar to that of  the Federal Attorney General).

A ruling came down yesterday that will interest everyone who has every place an online advertisement using "Key Words".

This cannot be the final outcome for the case and i fully expect Google to appeal however the basics of the case are this.

The ACCC have won a $500m ruling against Google that they used keywords belonging to competitors in the advertisements they've placed and that Google is responsible for the action of its users contrary to the terms of use.

What i dont understand about this case (thankfully i'm not a lawyer....) is how does this infer rights to a company far beyond its current use.

Eg does that mean i can never use the word "Honda" in any advertisement even though i sell Hondas (as does http://www.tradingpost.com.au/)

How does this affect the IP harmonization rules between the USA and Australia? technically arent the USA courts supposed to reflect the decisions made in Australia?


  1. This looks like it has ruled against Google for "keyword insertion" into headlines of ads that result in competitive brands showing up in headlines ... my suggestion - if you bid on competitive brand terms - DO NOT USE keyword insertion into your headlines - you should be segmenting your campaigns with competitive brand terms anyway. I am not a lawyer, so I don't know its affect in using brand terms of products you actually sell - but I suspect you should have affiliate or commercial agreements that spell out what you can do with brand terms of products you sell.


  2. OK so i guess point 57 in the ruling covers this - its the insertion into the advertisement that is the problem.

    The advertisement in question was described by his Honour at [243]:
    The Honda.com.au advertisement is a top left sponsored link that appeared on 28 May 2007 (see Schedule 2) and at various other times ...It is an advertisement for a business known as CarSales in the following terms:

    Honda .com.au
    www.carsales.com.au/Honda-Cars Buy/Sell Your Civic The Fast Way on Australia’s No.1 Auto Website

    Immediately below the sponsored link is the first of the organic search results which consists of a link to the website www.honda.com.au which is a domain name registered to Honda Australia Pty Ltd (Honda Australia). Honda Australia is a subsidiary of the well known car manufacturer.

    The primary judge summarized the particular representations alleged by the ACCC to have been made by the publication of the “Honda.com.au” advertisement at [246]:
    by clicking on the Honda.com.au Advertisement, a person would be taken to the Honda Australia Site or an official website operated by Honda Australia;
    there was an association between the Honda Australia Site and the Carsales site;
    Honda Australia approved of the link between the domain name “honda.com.au” and the Carsales Site;
    Honda Australia had paid for the link between the domain name “honda.com.au” and the Carsales Site;
    • Honda Australia was a sponsor of the Carsales Site.