Search engine concerns? The law can help

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I am sure you have felt it too; you have decided to purchase something; you want to check its availability or maybe its price.  Your finger itches, you pick up your phone and google it.

However, have you ever typed in a search word and received an unexpected answer?  Have you ever searched for Pizza Hut only to receive Domino’s as the answer?  This happens because of the complex Google algorithm.

Taking a step back, Google uses AdWords which are purchased by a business along with advertising, with these advertisements often purchased by a number of clicks per day (once the number of clicks has been reached the advertisement is hidden).  The complexity comes as the Google search engine rationalises the prominence of the various results and advertisements on the search engine results page  based on how close the searched word is to (a) any relevant website content, (b)any purchased AdWords, and (c) the real time usage of the various advertisements triggered by the search word.

When searching a product or business, if you’ve noticed that your search results took you somewhere unintended, as a consumer sometimes that can be okay. If you’re after a specific item, often any outlet that allows you to purchase that item is suitable.  It might even lead you to a cheaper or more convenient version of that item.

However, when you’re a business owner, especially small business owner, if a potential customer typed in the name of your business and was directed to a competitor, this is terrible.  Such misdirection has the ability to materially impact your bottom line. 

For the business owner, should you notice that a search of your trademark or business name is leading to an ad or website of a competitor, there are two main protections at law.  The first is protection under Australian Consumer law.  There have been circumstances where Australian courts have indicated that the deliberate purchase of AdWords that are identical to a competitor’s business name which direct potential customers away from that competitor can be considered misleading or deceptive conduct.  

The second protection is specific to trademarks.  The basic position in Australia is that the mere purchase of an AdWord identical to a Trademark is not necessarily considered ‘use’ under the Trade Mark Act.  However, depending on how the particular AdWord is then used in the advertisement, the ‘use’ of the AdWord could itself be a breach the Trade Mark Act. 

While these protections depend largely on individual circumstance, it is comforting to know that there is some protection at law to ensure a Google search of your business will lead to your business.  

Bryce Robinson is a solicitor – commercial and corporate at Osborn Law

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