In Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086 in which Google Inc was the Second Respondent the Federal Court has published its decision in respect of proceedings originally instituted in 2007 against Google (background). The ACCC alleged misleading and deceptive conduct in relation to sponsored links that appeared on the Google website.

One of the claims made by ACCC related to the use of “Kloster Ford”: the business names “Kloster Ford” and “Charlestown Toyota” appeared in the title of Google sponsored links to Trading Post’s website. Kloster Ford and Charlestown Toyota are Newcastle car dealerships who competed against Trading Post in automotive sales. In other words, the ACCC said that Trading Post bought those names for use to link to its site when certain automotive sales searches were performed on Google even though Trading Post had no association with those names.

The ACCC had previously settled its action against Trading Post and declarations were made about its misleading conduct. The decision therefore mostly related to Google.

The ACCC alleged that the appearance of organic search results and sponsored links was essentially the same and therefore misleading. It also complained about misleading keywords in the headlines of particular advertisements.

After considering Google’s technical evidence and trade marks policy Justice Nicholas dismissed the claims against Google.

He concluded:

“I do not accept that ordinary and reasonable members of the class would be likely to be lead to believe that either top left or right side sponsored links were not advertisements or that they were no different to organic search results. This conclusion applies not only to the Kloster Ford advertisement and the Charlestown Toyota advertisement but also to top left sponsored links and right side sponsored links generally…”

“Once it is accepted that the ordinary and reasonable members of the class would have understood, as was the fact, that the Kloster Ford advertisement and the Charlestown Toyota advertisement were advertisements, then it seems to me to follow that they would be most unlikely to have understood that any information conveyed by those advertisements was endorsed or adopted by Google. They would have understood that the message conveyed was a message from the advertiser which Google was passing on for what it was worth.”

UPDATE 14 October 2011: The ACCC has appealed the decision

Following the dismissal of their appeal to the Federal Court Full Court (Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23) from the trial judge’s decision that iiNet did not authorise the infringements of copyright by the iiNet users, the film studios are seeking special leave to appeal to the High Court. UPDATE 12 August 2011: special leave granted.

In lengthy judgments the Full Court judges split 2:1 against the film studios but were all critical of iiNet and Judge Emmett suggested a better way in which the film studios should have given notice of their concerns.

For detailed analysis see Kimberlee Weatherall’s post here.

I was pleased to be invited to speak at Simon Lewis’ online legal services conference in Sydney on Thursday 4 March.

There was a great mix of “old hands”, overseas speakers and local trailblazers with plenty of ideas and examples.

It was good to see 3 “biglaw” firms participating.

Adrian Dayton has posted his keynote slides here.

I gave an overview of Langes’ online model.

Most credit unions and building societies have a website. Are you up to date with recent changes in the law?

Have you included the right legal terms
and conditions of use?

Have you included the required disclosures under the Consumer Credit Code (for your credit products) and under the Corporations Act (for your deposit and advice products)?

Are you aware of the changes in the law that will allow you to streamline your customer processes?

Doing business on-line requires compliance with e-business rules as well as the standard laws.

In managing a website, you need legal advice on a range
of issues:

• ownership and protection of your domain name, logo and trade mark;
• ownership of the design and content of your Website;
• contracting with a developer and Internet Service Provider;
• rights to use software and ordering and billing processes;
• terms of use of your Website;
• privacy policy and collection of personal information;
• dealing with search engines and linking;
• advertising arrangements;
• liability issues;
• consumer rights;
• security issues;
• jurisdictional issues;
• defamation issues;
• disclosure of your business details;
• the enforceability of on-line contracts.

Companies put a lot of effort into making sure that their web
site is effective. But in addition to
making the site look and work properly, it’s equally important that you
comply with the wide range of laws imposed on web sites in Australia.

If you are APRA-regulated then in addition to the other applicable
laws your website needs to satisfy the corporate governance standards
and have regard to the ASX Governance Council Corporate Governance Principles and Recommendations.

If you are fundraising online then you need to comply with ASIC’s policies.

And from the end of the September 2008 quarter you need to make website disclosures about capital and credit management issues under APS 330.

WIPO reports that in 2007, a record 2,156 complaints alleging cybersquatting – or the
abusive registration of trademarks on the Internet – were filed with
the World Intellectual Property Organization’s (WIPO) Arbitration and
Mediation Center (Center), representing an 18% increase over 2006 and a
48% increase over 2005.

WIPO parties have settled a quarter of all cases without a panel
decision. Of the remainder, 85% of panel decisions have ordered
transfer of the domain names in question to the complainant and 15% of
the complaints were denied, leaving the names in the possession of the
registration holder.

The top five sectors for complainant business activity were
Biotechnology and Pharmaceuticals, Banking and Finance, Internet and
IT, Retail, and Entertainment.