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Changes to Google’s AdWord Policy for Trade Marks

Janice Yew | October 21st, 2015

mdp lawyer Sam Parker explains the changes introduced by Google earlier this year regarding its AdWord policy and how this could effect trade mark owners.

In February this year, the High Court handed down its decision in Google v ACCC [2013] HCA 1. The case concerned the liability of Google for the content of third party advertisements which it displayed as part of its search results. The Court ultimately found that Google is not responsible for the content of those advertisements.

On 23 April 2013 Google introduced significant changes to its AdWord policy which may have some impact for owners of trade marks in Australia.

Changes

A key part of Google’s advertising business is the auction of keywords that trigger certain advertisements. Businesses regularly bid for the right to use certain words which, when entered into Google as part of a search query, trigger the text advertisements displayed as part of the search results.

Prior to April 2013, the owner of a trade mark in Australia could prevent another company from using its trade mark as a keyword. Following the change of policy in April, businesses are now free to use their competitor’s trade marks to trigger their own advertisements.

Implications

It is important to note that while companies can now use competitors’ trade marks to trigger the display of their own advertisements, the owner of the trade mark is entitled to prevent its use in the actual text of the advertisement.

Similarly, the owner of a trade mark will still have recourse against an advertiser (but not Google) under the Australian Consumer Law – for example, if a consumer is likely to be misled or deceived into thinking that the advertisement is associated with the owner of the trade mark.  In this regard however, we note the comments of the High Court in Google v ACCC that consumers generally understand the distinction between the genuine search results and the sponsored advertisements.

If you would like any further information or have any queries relating to the content of this article, please contact mdp on 03 9620 9660 or via info@mdplaw.com.au.

Janice Yew

Janice Yew

Lawyer, BCom JD at mdp
Janice joined mdp in 2013 as a law clerk while completing her Juris Doctor at the University of Melbourne. In 2015, she came onboard full-time as a law graduate, and started working in the firm’s property, commercial and intellectual property practices.
Janice Yew

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