Remember when our parents used to say, “I’ll search that on the Google”? Google has become a verb. We do not search something on “the Google” anymore, we “Google it”.
So, what happens when you “Google something”? We get search results based on what was typed into the Google search engine – simple right? But we all know that the first few search results on the page are ads, which businesses have paid good money to ensure their ad is seen first. The business purchases hidden and visible keywords so that their advertisement appears when you use certain words in your Google search.
So, what happens if a business uses the name of their competitor or the name of their competitor’s products in their Google advertisement? In this blog, we will break down whether using another businesses trademark as a key word is legal, and what Google’s newly updated trademark policy means for your business.
What is Google AdWords?
The Google AdWords service allows advertisers and businesses to promote, advertise, and direct consumers to its website. They usually appear at the top of a search results page on the Google search engine because they have been ‘sponsored’ i.e. ‘paid’ for. Keywords are purchased through Google Ads which may include registered trademarks or Business Names owned by a competitor in order to deter customers away from their competitors. Cheeky stuff, right? So, does this infringe on trademark law?
What the Courts have said in the Past
In the 2016 case, Veda Advantage Limited v Malouf Group Enterprises Pty Limited  FCA 255, the Malouf Group purchased 86 keywords through Google’s AdWords service that included another business’ trademark - the word ‘Veda’. So, when you typed ‘Veda’ into the Google search engine, the results included Malouf’s ‘sponsored’ websites and advertisements. When Veda found out their trademark was being used in a competitors Google advertisement(s), they sued. The court held that because the keywords were not visible to consumers, Malouf did not infringe on Veda’s trademark rights or contravene Australian Consumer Law.
So, you might be thinking, really? We can use a competitor’s trademark in our Google advertisement(s)? The answer is a strong no. The Court said that if the Google keywords were visible, it would be misleading and deceptive conduct. Google also recently introduced a new ‘dynamic keyword insertion’ feature, which shows the keywords as visible in the advertisement, which would constitute misleading and deceptive conduct based on the Veda case and trademark infringement. A recent decision from the Full Court of the Federal Court of Australia, is authority that use of someone else’s trademark as a Google AdWord can now constitute trademark infringement.
What the Courts say Today
In the recent decision of Australian Competition and Consumer Commission v Employsure Pty Ltd  FCAFC 142 (13 August 2021), Employsure paid for the Google AdWords service and Google’s ‘dynamic keyword insertion’ feature which made the keywords ‘fair work commission’, ‘fair work Australia’, ‘fair work’, ‘fwc’ and ‘fair work ombudsman’ appear in the headline of the Google search result, as you can see below:
(*This Google Ad is now unavailable and has been taken down from Google’s search engine).
While Employsure provided specialist workplace relations services and advice, they were a private company with no affiliation to any government agency. Due to this, the Federal Court held that Employsure falsely represented themselves as a government agency and created a misleading and deceptive impression on the intended audience, being an ‘ordinary, reasonable business owner(s)’ who were likely to not study the Google Ads closely.
The key takeaway from this is that giving the impression that your business is something that it is clearly not to attract and gain clicks can ultimately lead to breaching Australian Consumer Law and the Trade Mark Act. By using another business’ trademark in your Google advertisement(s) you may be liable to anyone damaged by the conduct and in addition the ACCC may have grounds to bring a claim against you. The Employsure case is an important reminder to exercise caution when relying on Google AdWords to create advertisements to attract potential customers that are open to interpretation or even misinterpretation!
This blog provides general information only and is not intended as legal advice specific to your circumstances. Please feel free to seek our professional legal advice if you have any particular questions, concerns and/or queries.