Cyberlaw: adwords

Showing posts with label adwords. Show all posts

Metatags and Google advertisements found to be trademark infringements

In an appeal decision handed down on Friday, the Full Court of the Federal Court of Australia has affirmed a trial judge's decision that metatags and Google advertisements were trademark infringements.

The case is Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2017] FCAFC 56.

The case concerned a real estate agent advertising short term accommodation, using the name of a nearby Accor hotel (which was a registered trademark) to attract Internet users to the real estate agent's booking website.

The court confirmed findings of the trial judge that the following were trademark uses and trademark infringements: use of of the trademark in the domain name, use in metatags for the website, use in headings for the website, use in email addresses, and use in Google advertisements.

New Zealand AdWords Case

Trade mark infringement found when competitor purchased Google AdWords that were trademarks of the other.

InterCity Group (NZ) Ltd v Nakedbus NZ Ltd [2013] NZHC 379

See also comment.

Use of a competitor's mark in advertising could amount to an infringement of their trade mark unless it is clearly for descriptive or comparative purposes only e.g. if the advertisement includes sufficient text to differentiate the product or service that of the competitor.

Google not responsible for contents of advertisements

The High Court of Australia decided today that Google is not responsible for the content of advertisements placed via its AdWords program.

A key reason was the following at [69]:

“That the display of sponsored links (together with organic search results) can be described as Google's response to a user's request for information does not render Google the maker, author, creator or originator of the information in a sponsored link. The technology which lies behind the display of a sponsored link merely assembles information provided by others for the purpose of displaying advertisements directed to users of the Google search engine in their capacity as consumers of products and services. In this sense, Google is not relevantly different from other intermediaries, such as newspaper publishers (whether in print or online) or broadcasters (whether radio, television or online), who publish, display or broadcast the advertisements of others.”

See:
Court Decision, Google Inc v Australian Competition and Consumer Commission [2013] HCA 1
SMH
Technology Spectator
KWM Bulletin

Class 7: Liability of intermediatories and ISPs

This class deals with liability of intermediaries. For example, is an ISP liable for the conduct of its users? Is a web hosting company liable for the content of others that it hosts? Is TripAdvisor liable for reviews of hotels posted by users? Is Google liable for the content that appears on this blog?

Should such intermediaries be liable for the actions of others?

This is a very topical class, with a number of relevant decisions from the past two weeks. Thus, there is a lot of reading for this class.

The main reading for the class is the iiNet case:

The iiNet case is currently on appeal to the High Court of Australia. Oral argument has been heard, and we are waiting for judgment. It is reported that judgment will be handed down on Friday, 20 April. Transcripts and written submissions can be found on the High Court website.

Please also read the very recent case: Australian Competition and Consumer Commission v. Google Inc. [2012] FCAFC 49 decided last week; and compare UK position summarised here.

Also, read the following:

MegaUpLoad and Kim Dotcom indictment; and users trying to get access to their data and MegaRetrevial
Viacom v. Google decided by the Second Circuit on 5 April 2012; and see note here (and older notes here: YouTube and note and Summary Judgment)
Bunt case
Cooper case
ACCC v Allergy Pathways and ACCC Press Release
Stratton Oakmont and follow-up
Communications Decency Act section 230
TripAdvisor: Terms; Restaurant Gives Up; tips; and Findlaw note; and another lawsuit
DMCA - Unintended Consequences White Paper

Google Liable for Misleading Advertisements

The Full Court of the Federal Court of Australia today decided that Google was liable for misleading advertisements placed by advertisers. See Australian Competition and Consumer Commission v. Google Inc. [2012] FCAFC 49.

The 3-0 judgment against Google included the following text:

"An ordinary and reasonable user would conclude from these circumstances that it was Google who was displaying the sponsored link in collocation with the sponsor's URL in response to the user's search. Even if all these circumstances would not be apparent to ordinary and reasonable users, so that Google could not be "seen" by them to be more than a mere conduit, these circumstances show that Google is, in fact, much more than a mere conduit. ... Critical to this conclusion is the fact that the sponsored link is displayed on the screen in response to a user's query which is made by the entry of selected key words. Thus, the user asks a question of Google and obtains Google's response. Several features of the overall process indicate that Google engages in misleading conduct. ...

Google supplies its advertising customers with the ability to select keywords which are expected to be used by persons making enquiries through Google's search engine. The ability of advertisers to select "broad match" keywords enables them to trigger sponsored links through Google's search engine based on known associations which are determined by Google's proprietary algorithm. Although the keywords are selected by the advertiser, perhaps with input from Google, what is critical to the process is the triggering of the link by Google using its algorithms. That is a further reason to conclude that it is Google's conduct as a principal, not merely as a conduit, which is involved in each of the four instances that form the subject matter of this appeal."

Week 2: The Law of Google

This class will look at Google's business models, and the legal issued raised.

Have a high level look at the following parts of the Google empire:

Ten Things We Know To Be True
Google Products
Google Books
AdWords and AdWords Help
AdSense
New Privacy Policy (and review material linked from this page)

Reading:

Australian Competition and Consumer Commission v Trading Post Australia [2011] FCA 1086 (22 September 2011), currently on appeal
Financial Times: Google Privacy Policy Gets Public Airing (2 March 2012)
Click Fraud
Advanced Click Fraud

Additional Reading if you have time:

Official Google Blog
Google's Inside Search
40 Changes for February 2012
Google Watch Blog
Prior Blog Posts Concerning Google
Google's Guide to having your website indexed properly in Google search results

Hosted Domains

Google Search Results Misleading

"In the Statement of Claim, the applicant alleges that, in the period from at least early April 2011 to 21 June 2011, the first respondent established a process by which searches for the applicant’s website by reference to the words “Pacific Boating” on the internet using the Google search engine were diverted to websites controlled by or associated with the first respondent."

See Pacific Boating Group Pty Ltd v Freedom Boating Club Pty Ltd [2012] FCA 72 (8 February 2012)

Australian Google AdWords Decision - Google Wins

After an 17 month wait, Justice John Nicholas of the Federal Court of Australia decided today that the ACCC did not make out their claims against Google in the case involving sponsored links and Adwords.

The key findings were that:

ordinary and reasonable members of the relevant class of consumers are likely to understand that sponsored links are advertisements; and
Google merely communicated the representations made by advertisers, without adopting or endorsing any of those representations

This is the matter in which one of the sponsored links was for Xbox360, which appeared when users searched for "playstation2". The court held that the publication of the sponsored link was misleading, but that Google was not involved in the contravention.

The court's reasons for decision are published at http://www.austlii.edu.au/au/cases/cth/FCA/2011/1086.html

Week 7: Liability of ISPs and Infrastructure Providers

Should such intermediaries be liable for the actions of others?

The main reading for the class is the iiNet case:

Also, read the following:

Bunt case
Cooper case
ACCC v Allergy Pathways and ACCC Press Release
Stratton Oakmont and follow-up
Communications Decency Act section 230
Google's liability for AdWords
YouTube and note and Summary Judgment
TripAdvisor: Terms; Restaurant Gives Up; tips; and Findlaw note

Keyword Decision in California

See Network Automation v. Advanced Systems Concepts

"Here we consider whether the use of another’s trademark as a search engine keyword to trigger one’s own product advertisement violates the Lanham Act. ...

Given the nature of the alleged infringement here, the most relevant factors to the analysis of the likelihood of con- fusion are: (1) the strength of the mark; (2) the evidence of actual confusion; (3) the type of goods and degree of care likely to be exercised by the purchaser; and (4) the labeling and appearance of the advertisements and the surrounding context on the screen displaying the results page.

The district court did not weigh the Sleekcraft factors flexibly to match the specific facts of this case. It relied on the Internet “troika,” which is highly illuminating in the context of domain names, but which fails to discern whether there is a likelihood of confusion in a keywords case. Because the linchpin of trademark infringement is consumer confusion, the district court abused its discretion in issuing the injunction. "

Keywords abuse - damages of $292,000

A law firm specialising in disability claims was awarded $292,000 by a California court, because of a competitor’s use of its mark as a Google AdWord.

See Binder v. Disability Group

Article: A Game Changer?

Meta-tags and Google Keywords - TM infringement

A recent Queensland case concerning trademark infringement issues, relating to Internet marketing. The case considers Google AdWords keywords, meta-tags and domain names in the context of trademark infringement.

See Mantra Group v. Tailly Pty Ltd

Tailly operated businesses under names such as "Circle on Cavill Private Apartments" and "A1 Gold Coast Holidays". Tailly went into bankruptcy last Thursday.

ACCC v. Trading Post

The case against Google & the Trading Post by the ACCC continues.

See judgment regarding amendment to claim.

Google Adwords Decision in Europe

See note on IPRights website.

Google Counter-sues regarding AdWords

This recent article is worth reading, as it relates to Google, trademark issues and also jurisdiction issues:

Google Countersues Haircutter Company That Brought On AdWords Lawsuit

http://techcrunch.com/2010/02/20/google-flowbee/

The Law of Google

These are my notes for class for Tuesday, 3 March 2009. The class is "The law of Google".

1. The breadth of Google.

Search
www.google.com
www.google.com.au
www.google.co.uk
www.google.ca
www.google.de
www.google.com.br
www.google.com.bd
www.igoogle.com
News
Images
Blogs
Maps
Videos
Books
Scholarly Papers
Finance
Custom Search, example: Leading Australian Law Firms
Syndicated Search and example
Directory
Products
Google Base

Search tricks and tips
Internal search
Site Search
Site Map

Other Google Stuff
Toolbar
Google Accounts
Web History
Gmail
Photos: Picasa and Picasa Web
Chrome Browser
Blogger
Groups
Reader
Notebook
Calendar
Docs
Talk
YouTube

More information: Wikipedia
How Google Works
Google Sitemap

2. AdWords and AdSense: Google Advertising

A. Do these searches on Google, Australian Google and UK Google and compare results:

Noosa
Hilton
Q1
cheap accomodation queensland
flowers paddington
the tallest building in brisbane is
DSL-G604T
Sony
Harvey World Travel
Harvey World Travel Insurance

B. AdSense

Look at the Google Ads on these websites:

NY Times
Van Gogh Gallery
Brisbane Apartments and Reviews
Cyberlaw and Policy and example article
This Blog (look top right --->

More information on Adsense

C. Google Trends and Google Analytics

D. AdWords

create Ad
select Keywords, budget and display location
people then click on your Ad.

Terms: pay-per-click (PPC); cost-per-click (CPC); cost-per-impression (CPM); click through rate (CTR)

KeyWord Tool and Tool

More information: Google Learning Centre

E. Other types of Google advertising
Maps

F. Problems & Issues

(a) Pay Per Click Websites

Look at these websites:

(What is legitimate? See RealSpanking and Jackass and UStream)

(b) Click Fraud
What percentage of click are fraudulent? See this story and here too.
Clickfraud is old news: Crack-down

(c) Trade Mark Issues
Google Procedure
ACCC Lawsuit: See here and here and here and here (Google filed its defence on 17 November 2008.)
RescueCom Lawsuit
French Lawsuit
Geico Lawsuit and settlement

More information
Google Business Solutions

3. Legal issues and lawsuits

Book Search Lawsuit and here
Caching & Copyright: see here and here and here

Also, see older posts in this blog, such as this post from 2006.

Cyberlaw

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