I’M SURE you have felt it too – you’ve 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.
Have you ever typed in a search word and received an unexpected answer? Say, you’ve searched for Pizza Hut, only to be directed to Dominos? 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 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) relevant website content, (b) purchased AdWords, and (c) real time usage of the various ads triggered by the search word.
If you’ve ever noticed that your search results took you somewhere unintended, as a consumer sometimes that can be OK. 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. 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 impact your bottom line.
For the business owner, should you notice a search of your trademark or business name is leading to an ad or website of a competitor, there are two main protections. The first is protection under consumer law. There have been circumstances where courts have indicated that the deliberate purchase of AdWords identical to a competitor’s business name can be considered misleading or deceptive conduct.
The second protection is specific to trademarks. The basic position is the mere purchase of an AdWord identical to a trademark is not necessarily considered “use” under the Trademark Act. But depending on how the AdWord is used in the ad, the use of the AdWord could itself be a breach.
While these protections depend largely on individual circumstance, it’s comforting to know there is some protection to ensure a Google search of your business will lead to your business.