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Showing posts with label misleading conduct. Show all posts
Showing posts with label misleading conduct. Show all posts

Comparison Website that made money from Affiliate referrals was Misleading

Trivago, a price comparison, recent lost an appeal in Australia regarding how it ordered the listings on its affiliate program website.  Trivago's conduct was held to be misleading, and therefore illegal, in Australia.

See ACCC media release:  https://www.accc.gov.au/media-release/trivago-loses-appeal-after-misleading-consumers-over-hotel-ads

Judgment is here:  Trivago N.V. v Australian Competition and Consumer Commission [2020] FCAFC 185

Another ACCC case regarding misleading consumer reviews

The ACCC has launched another case against ServiceSeeking regarding misleading online reviews of tradespeople.  See story here.

This is similar to the Meriton case, discussed in posts below, regarding misleading hotel reviews on TripAdvisor.

Liability of Intermediaries for copyright infringement

At the end of last year, the Federal Court of Australia issued a judgment in against the Redbubble platform, in favour of Pokemon.

The judgment is here:  Pok√©mon Company International, Inc. v Redbubble Ltd [2017] FCA 154

This is an important copyright and consumer protection law case.  Redbubble recently appealed (and its seems that their appeal was lodged outside of the appeal window).

There is also a similar case pending, involving the Hell's Angels.

A good summary is located on the IP Whiteboard blog.

Meriton found guilty of manipulating TripAdvisor Reviews

Serviced apartment and hotel operator Meriton was found to have engaged in illegal conduct by manipulating TripAdvisor reviews.  The ACCC sued Meriton and won.  The ACCC brought actions under s18 and the little used s34 of the Australian Consumer Law.

See judgment at:  http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1305

According to the judgment, Meriton manipulated TripAdvisor in two ways:

"The respondent (Meriton) conducts a business of offering serviced apartment accommodation at (at least) 13 properties in Queensland and New South Wales. These properties appear on the TripAdvisor website. During the period November 2014 to October 2015 (the relevant period), Meriton participated in the Review Express service offered by TripAdvisor.  On a weekly basis, Meriton provided TripAdvisor with the email addresses of guests who had stayed at its properties and TripAdvisor sent email invitations to these guests to post a review. However, rather than sending TripAdvisor the email addresses of all guests who had stayed at its properties (other than those who had requested that their details not be provided), Meriton adopted the following two practices:
(a)    The first practice was to add the letters MSA” (which stand for Meriton Serviced Apartments) to the front of the email addresses of certain guests. This rendered the email address invalid. This practice was applied to guests who had made a complaint or were otherwise considered likely to have had a negative experience at a Meriton property.  I will refer to this practice as the MSA-masking practice.
(b)    The second practice was to withhold from TripAdvisor the email addresses of all the guests who had stayed at a property during a period of time when there had been major service disruption (such as the lifts not working, no hot water, etc). I will refer to this practice as the bulk withholding practice."

Thredbo.com Decision

The Federal Court recently released its decision in the case brought by the owners of thredbo.com.au against thredbo.com.

The decision is: Kosciuszko Thredbo Pty Limited v ThredboNet Marketing Pty Limited [2013] FCA 563

realestate.com.au Federal Court decision

On Friday, the Federal Court of Australia handed down its decision in the realestate.com.au v. realestate1.com.au case.

The decision is [2013] FCA 539.

The case concerned a generic term, that was used as a domain name, but where significant advertising had built up recognition of the brand.  The Applicant lost on consumer protection grounds but was successful in relation to trade mark infringement.  The case shows the risks of using a dictionary term as a brand, and the importance of a trade mark registration.

"245    However that observation about the ordinary case does not really address (as neither Perram J nor Chesterman J were called upon to address) a situation where the highly descriptive nature of the second-level domain (“realestate”) makes a suffix such as “.com.au” essential to brand or name recognition. Consumers with some familiarity with realestate.com.au as a brand are likely to look beyond “realestate” and to the entire domain name in order to establish identity. A real danger of confusion again arises because in the scanning process which may occur on a search results page, some consumers will miss the indistinctive “1”. I have therefore concluded that the use of “realestate1.com.au” as part of an internet address on a search results page, constituted the use by Real Estate 1 of a mark that was deceptively similar to REA’s realestate.com.au trade marks."

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."

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)

Misleading Online Reviews

A blog entry from the NY Times: Discounting Bad Reviews

"Are reviews of products and services on the Internet believable? Probably not. In the latest case, a merchant offered a rebate in exchange for getting a customer to revise a rating, but it says that is not the way it usually does things."

Affiliate Program Advertisers Must Take Care Not to be Misleading

Many businesses run affiliate programs.  That is, a publisher or blogger will receive a commission for referring people to the website of th...