The law in Australia continues to develop regarding use of competitor brands including use in domain names, in the content of online ads and use of Google Adwords.

Google's position is now clear with the Australian High Court unanimously holding in Google Inc v Australian Competition and Consumer Commission (2013) HCA that Google was not liable for misleading or deceptive conduct in respect of advertisements published using its online Adwords service, in circumstances where other traders’ brands were used in online advertisements (Google Case) . The High Court determined that "Google has no control over a user's choice of search terms or an advertiser's choice of keywords" and should not be responsible for misleading or deceptive conduct of its customers, as the advertisements were predetermined by the advertisers, not Google.

While Google's position in Australia may be clear, various advertisements in the Google Case were found to be misleading and deceptive, and the traders held responsible for those advertisements. So while Google may permit businesses to bid on and use terms (including other traders' trade marks), businesses must tread carefully when deciding what terms to use and how to use them online.

We have reviewed some recent Australian cases to consider the Australian Courts' views of what will and will not be permissible conduct online and also touch on Google’s own policy (post the Google Case).

Ashleigh Fehrenbach