Following on from yesterday’s post, @davidstarkoff points out that:
The hearing of the appeal has been fixed for 11 September 2012.
Apparently, back on 25 June the High Court granted Google special leave to appeal from the Full Federal Court’s ruling that Google is liable for the misleading ads placed by advertisers.
Maybe the internet will be able to keep working in Australia after all.
Austlii is only up to 20 June, at the time of posting.
Lid dip “Law Geek Down Under“
The Full Federal Court in Australia does.
The ACCC has successfully appealed the Google Adwords case for misleading and deceptive conduct.
So, for example, Alpha Dog Trainging has been operating a dogtraining business for 12 years. Dog Training Australia (Ausdog) bought ads on the keywords Alpha Dog Training through Google’s Adwords program. One ad generated was:
Alpha Dog Training DogTrainingAustralia.com.au All Breeds. We come to you. No dog that can’t be trained. Instead of being taken through through to Alpha Dog Training’s website, however, a user who clicked on the ad was taken through to Ausdog’s website.
A clear case of misleading or deceptive conduct by Ausdog.
Because of its role in “selecting” which ads got placed in what order, Google has also been found liable.
Prof. King, formerly an ACCC commissioner, highlights why and thinks the Court got it seriously wrong.
Did we just kill the Internet in Australia?
ACCC v Google Inc. [2012] FCAFC 49 (Keane CJ, Jacobson and Lander JJ)
News just in:
Google’s placement of advertisements, generated through its AdWords program, on search results pages is not misleading or deceptive conduct contrary to s 52 TPA / s 18 ACL (I’m afraid you have to scroll down). However, the advertiser’s use of another trader’s name in the headline for an advertisement which had nothing to do with that trade was.
So for example, the Trading Post used the AdWords program to generate an ad:
Kloster Ford
www.tradingpost.com.au New/Used Fords – Search 90,000 + auto ads online. Great finds daily!
The advertisements at the URL did not have anything to do with Kloster Ford or vehicles Kloster Ford was offering for sale.
The Trading Post therefore had engaged in misleading or deceptive conduct; Google did not.
Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086
357 paragraphs to read now (or a bit later)
Lid dip @wenhu
SMH report
For anyone who may find some value in them, I have posted the slides from my IPSANZ talk ‘Of Keywords, Adwords and Trade Mark Infringers at Slideshare.
The European Court of Justice has ruled that the sale of ‘trademarked’ terms by Google as keyword triggers of advertising:
From IPKat reports. According to the IPKat, the rulings themselves:
IPKat threatens more detailed consideration in a later post.
Prof. Goldman provides a thoughtful analysis from a US perspective here.
Yesterday (in the USA) Google’s new trade mark policy and complaint procedure came into force.
All the details here.
Australia is still in the regions where both text and keywords are monitored.
Lid dip @TrademarkBlog (aka Marty Schwimmer)
Well, strictly speaking, the 2nd Circuit in the USA has held that Google’s sale of keywords may be use in commerce.
Rescuecom had sued Google for trademark infringement by selling advertisements (sponsored links) triggered by Rescuecom’s trademark. The District Court had dismissed the claim on the grounds that Google’s conduct was not use in commerce. So now it goes back to the District Court.
Of course, Google’s conduct, if were done in Australia or transacted with a business located in Australia, would be in trade or commerce for the purposes of the Trade Practices Act. In context, however, the nearest analogue under our law is whether or not the conduct might be “use as a trade mark” (in the sense of using the sign in the course of trade) for the purposes of s 120 of the Trade Marks Act.
Professor Goldman considers the ramifications under US law (and the distinguishing of WhenU) here.
Prof. Gans over at CoreEcon takes issue with Eric Clemons’ paper in which Prof. Clemons appears to be arguing that Google’s business model – using sponsored links and paid advertising triggered by keywords and the like – is based on misdirection.
Now, if Prof. Clemons were right, that could be a reason for contending that the use of trade marks in keywords etc. is (at least) misleading or deceptive conduct. But, as noted, Prof. Gans puts a very big question mark over this.
Now, neither of the Professors is dealing with the legal arguments, but I do wonder why people would click on (keep clicking on) Google’s sponsored links on the scale which they apparently do if the sponsored links etc. were in fact misdirecting them.
Whatever happened to the case which the ACCC brought against Google here?
IPKat overlooks the work in progress in the EU here.
