Google ads 'misleading and deceptive' Australia's Federal Court has found that some Google ads are misleading and deceptive, overturning a previous ruling that the search giant is not responsible for dodgy ads its advertisers create. The case centered on advertisers who bought keywords and created ads using rivals' names. Travel agency STA Travel, for example, …
Google could quite easily honor trademark owners requests to not allow competitors to bid on trademarked names they don't own. They used to do this, but then decided to open the floodgates and ignore trademarks.
Put that another way, Google don't need to do the policing work, trademark owners would do it for them.
It does get messy quite quickly. Some companies claim trademark rights on things that cannot be (formally) trademarked in some jurisdictions (e.g. "WIndows" and "Word" in the UK), others claim overly broad rights (e.g. Virgin, McDonalds etc. seeking to stop others using the words "Virgin", "McDonalds", "Easy" etc. across all fields of activity around the world, regardless of the independent rigts of others to use those words). And different companies may have claims to the same "mark" in different jurisdication (e.g. "iPad"). Furthermore, some jurisdictions (e.g. US) require that trademark owners defend their asserted claim in order to maintain registration. This is a receipe for conflict when operating in multiple jurisdictions.
If Google is then obliged to rule on the merits of such overbroad and conflicting claims, it becomes a quasi-judicial authority in respect of global trademark rights. This is not good, especially considering its reputation for opaque procedures and aloof attitude in the face of well-founded concerns. And no doubt they will find it expedient to agree to the wishes of whichever party has the most money to take them to court, not which has right on their side.
If you hired a cab driver and instructed him to break the law by running over people, and he complied, the damn straight he's guilty, just as you would be.
However, the differences are:
1) Is it truly deceptive for competitors to run ads over a search for a given subject? I like having alternatives brought to my attention, and I realize they are not associated with the main company.
2) If deceptive, is it unlawfully so?
3) If it is unlawfully so, is Google aware of it being unlawfully so?
1) Yes it is deceptive. The punter was searching for "Harvey World Travel", and not "alternatives to Harvey World Travel". They were searching for a specific company by their full name. They were not searching for products or services offered by that company. This is one step back from STA trying to buy the harveyworldtravel.com.au DNS entry.
2) Yes it is illegal (in Australia at least) to trade off the Goodwill of another company. It's even criminal. It is enforced by the police and not a private lawsuit.
3) Yes. Or if they are not they are guitly of gross negligence. Knowingly taking payment to facilitate somebody else to break the law is also illegal. There is no legal reason why STA Travel should be buying "Harvey World Travel" as a keyword. Google should know this. If they were unaware then every single Australian Lawyer on their payroll should be deregistered and sued for professional negligence.
"The copy for some of those ads mentioned Harvey World Travel, but the embedded links sent users to the STA Travel website. Several other companies indulged in similar practices."
Did Google write the copy text of those ads? If not, then who is responsible for the words in the ad?
If I write a charmingly wishy-washy screed as a letter to the editor of my local paper, and it is much later after publishing the paper discovered that the combined first words from each paragraph libel a local PooBah, who is the PooBah going to sue? Who is it *reasonable* to assign blame to?
"Did Google write the copy text of those ads? If not, then who is responsible for the words in the ad?"
It doesn't matter.
The argument is that Google is still responsible for the publication of the ad. There are a lot of history and anecdotal evidence to show that the publisher of the ad has the legal responsibility for the distribution of the ad.
Google can easily access and organize a database of trademarks around the world along with their owners. So Oracle couldn't buy an ad that had embedded links to DB2 (IBM's database product) so that when someone searched on DB2, an Oracle ad would show.
Size is not a defense.
"Google can easily access and organize a database of trademarks around the world"
Easily? Bearing in mind trademarks don't have to be registered, the many people can have the same trademark in different sectors, the same trademark can be used in the same sector in different countries, etc...
Not quite so easy.
It's not just a trademark. It's an Australian Registered Business Name.
And look, here's a government provided website that would enable them to check.
http://www.abr.business.gov.au/SearchByName.aspx?SearchText=Harvey+World+Travel
Also note that this is Google Australia. Not Google On The Other Side Of The World. By choosing to operate in Australia they are choosing to be aware of and abide by Australian Law. At the very least they would have to get the advertisers to provide a declaration that "they have the right to advertise on the keywords selected".
"Google would have been unable to show that it had no reason to suspect that publication of these advertisements was a breach of the Act."
Willful ignorance is not an excuse.
Its the /one/ reason why I started using Bing whenever I was searching for technical based info. Before I go on: I am NOT claiming that Bing is perfect here, but it has been my experience that in some cases its better (and less annoying) than Google.
Why ?
Whenever I search for something apparently arcane I end up on websites who either claim to hold the answer to my question (by showing a supposedly forum post containing my /exact/ question (how odd..) and allowing me to read the answers AFTER paying them... xxx amount of cash (yeah right!)). Or even worse, also happening more and more these days: I end up on a /different/ search engine which basically searches some other (but usually the same) websites.
With Bing otoh... Note: for the stuff I searched for, which was most commonly Windows related stuff. However, I still ended up with the crap down on page 2 or 3 or something. I also noticed that some companies behind the crappy pages ("we have the answer, just pay us") also were advertising on Google.
I know I don't pay for Google's services (or do I? What exactly is Google (trying to) extract from my setup?) but a lot of this stuff is plain out annoying. I somehow would have expected some kind of filters or such, esp. when taking into account that Google by itself was once a search engine where you could actually find relative material pretty easily, even if the stuff you were looking for was kind of arcane.
So yes, I think this is deserved. They became big with providing an excellent service (honestly, they really did!) yet when they started to learn how to make money from it the services went quickly down the drain where quality was concerned. And the people who made it all possible? Well, you figure that one out for yourself..
Eh? You seem to think that you pay Google to be placed in the search rankings?
You can only pay Google for Ads not for rankings. This is what the article is about is how ads can target keywords. Ebay for instance sometimes shows strange ads - i.e. Search for "Timbuktu", Ad shows "Buy Timbuktu now at Ebay".
Otherwise Google seems to have a constant battle sometimes to keep the SEO built sites out of the main rankings and does a pretty good job, despite awful sites like "Foundem" trying to sue Google to not be de-ranked for being pointless.
If you find a certain site that keeps getting in the results by optimising itself for Google then mark it down and it will drop off your searches. Enough people do it and they lose prominence. It's just more people try to game Google.
As for Bing, in all honestly, I've tried it and every now and then I keep trying it and it is hopeless. It really doesn't deliver decent results or understand the search as well. The first few basic searches seem promising and then a few different ones and it shows up just how limiting it is.
....there is a very simple method for sorting this out. When someone asks for an Adword you simply search* potential buyer and adword to see if there is a link or a conflict.
All they need to show is that they made an attempt to check if you are trying to buy a competitors identity and there is not a court could touch them but they try to play the innocent party angle which will bite them.
*Was trying to think of a good search engine but none came to mind
When I was in Oz last week I was using a Telstra sim, every time I connected to the BBC website I was suddenly flooded with embedded ads, presumably put in place by Telstra themselves (and also presumably coming out of my data useage). Odd that the Australian government should be worried about false advertising but be okay with Telco's bunging forced advertising onto subscriber phones and charging them for the privilege.
I never see any.
After Scroogle went down I missed it so much that I wrote my own scraping engine, it removes all ads and price comparison sites (should I tick a box) before displaying the results. It is so annoying when searching for a hardware manual or a genuine product review to see a page of price comparison sites full of shilled reviews.
OK they still get my IP because reliable free proxy services are very transient. When I get the time and the inclination to do so, I will experiment with TOR perhaps turning the VM web server I use for this into a TOR node. I don't know much about TOR yet. Being both busy and lazy can be a curse.
Take control or be controlled.
In this specific example it was clear cut that the ad was meant to steal traffic away from a rival travel agency by trying to pass off as them. But unfortunately this ruling probably means bigger companies are now going to go after the little guys that may use a fairly generic but still brand name in there ads. Example would be a small company that specialises in selling used HP servers, printers etc so obviously uses the word HP in its ads. Next HP come along and takes them to court and because of this recent ruling wins the case because they are seen as being misleading with their ad.
If I buy billboard space and put a poster up saying a certain brand is bad is the owner of the billboard liable for the trademark infringement. Sounds like it could be in Australia.
To me it's the responsibility of the company placing the ad to not do anything illegal and like all trademark holders, it is up to them to monitor and defend their trademark.
To make sure no trademarks are used incorrectly I'd expect Google would have to hold a full, complete and up to date list of trademarks for all companies and individuals worldwide which they would then need to search each time an ad is created and compare the results to the trademarks owned by the company/individual created the ad.
What about trademarks that are stylized versions of words and sentences. Only the whole graphic is trademarked and not the individual words. How would this be figured out.
Absolutely it is the responsibility of the company placing the add to not do anything illegal.
But that doesn't mean Google (or the billboard owner) can take money if they *know* that the ad is illegal. In the case of the Billboard it is maginally feasible that the owner didn't see the poster before it went up (But who actually puts up the posters on the billboard? I assumed it was the board owner or their agent.) In the case of Google there is no way that Google is not *aware* of the *keywords* of the ad.
Therefore Google are aware of the illegal nature of the ad, and still took money. Do No Evil!
If somebody comes into your shop and says "I want to buy a knife to kill my wife" and you then sell them a knife (or any sharp edged implement) you are likely to end up facing serious jail time. In fact, in Australia you are legally obliged to inform the police that somebody was attempting to commit an illegal act.
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I would have thought that Google's responsibility for its advertisers had been established when they agreed to the $500,000,000 settlement with the Feds about ads for counterfeit and prescription drugs.
(As an aside, there is evidently now some problem with Google profiting from advertising related to human trafficking. It will be interesting to see how this develops...)
... for ones I agree ... Google is going down a slippery path (while used to be exceptionally decent) ... have a go and see for your self, google "avast" (a virus scanner) and you'll get, on top, AVG (a competing virus scanner) ... I know, the top section is reserved for ads, is labeled and background color marked ... but just ... barely distinguishingly from the search results ... well, this fits the bill for me ... Google ads 'misleading and deceptive' ... and this is very sad ... Google is a great and innovative company and does not need this kind of "white collar" recklessness ...
I like to see competing brands when I search for a generic product where I only know the brand name.
I like to see competing brands when I search for a generic product where I know a specific example.
I think that the legal monopoly rights our legislation gives to companies should try to achieve moral and ethical social benefits. I don't take it that those always coincide with the narrow interest of particular travel agencies or car manufacturers, and I particularly object to being told that I can't use the interenet to ask an obvious question like
"Have you got anything like a Toyota Corrola?"
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