LawFont.com

Oh yes, little flurry in the blogosphere over a story about Telstra buying Ads on Google so that Telstra’s ads would appear when someone searched for their broadband rival AAPT. As usual, the story attracted attention (see the IPKat, the Trademark Blog, Warwick Rothnie, Search Engine Watch Blog, Young PR, and Joshua Gans).

Only Gans points out that this is common practice (with examples! Go have a look). But is it legal?

According to Rothnie, Telstra claims it was the media buyer’s fault and has withdrawn the usage as soon as the Age newspaper brought it to Telstra’s attention. According to Young PR, AAPT went on the rampage, crying out:

‘How desperate is Telstra if that’s the kind of strategy they have to resort to and we have to stumble across and keep an eye on what happens when you Google our name?’

Frankly, if you’re not keeping an eye on what comes up as a result of the Google search, I wonder about your PR people.

But what’s the law on this?

Well, first, I really doubt that merely buying position on Google in this way – to ensure your ads come up – is any infringement of trade mark law. In essence (as I think Warwick has previously pointed out) it’s hard to see this as a ‘use to indicate origin’ – users don’t even see the use of the trade mark by Telstra here. So, my guess would be: no trade mark infringement.

That leaves ‘misleading and deceptive conduct’ under the Trade Practices Act. For that to be a problem, consumers would have to be confused – believing that seeing the link on the side (clearly differentiated by Google as a ‘sponsored link’, of course) meant that Telstra and AAPT are related in some way.

Hmmmm. I think the response to that is – as if. A vast majority of Google users (and Internet users) would be pretty familiar with the idea of a ‘sponsored link’. The ads are differentiated. You’d expect, too, in the 1 in a million chance of some confusion, it’s pretty easily remedied (you know, Internet browsers have a back button, right?)

Now, if Telstra had written the advertisement itself so it suggested a link, or suggested that they were AAPT or were supplying AAPT services, that would be a different matter.

I should note that the ACCC may take a different view – that sponsored links are a problem: see Rothnie here and here. If so, I reckon they’re wrong (although it always depends on the facts – and exactly how the ad is drafted).

Claims that this kind of activity (ie, buying adwords but clearly differentiating yourself as a different company) are wrong sound a lot like claims to absolute rights in trade marks (don’t you come anywhere near my mark, buddy). And we don’t have those here in Oz – at least, not yet. We have intellectual property. But that doesn’t mean that intellectual = property, right?