A new instalment in the Google AdWords saga

Back in July and September, we blogged on the controversy surrounding the practice of paying internet search engines for keywords to boost one company’s profile over another.  A new instalment has since arisen in what will inevitably be a long running battle between search engine companies and their rivals.  US law firm Habush Habush & Rottier has filed a law suit alleging that, by paying Google to link to the Cannon & Dunphy website when Google users search for the words ‘Habush’ and ‘Rottier’, Cannon & Dunphy have breached Wisconsin privacy laws.

Previous attacks on this practice have focused on allegations of trade mark infringement by search engine companies and purchasers of trade marked keywords.  However, this has been hard to make out. In the UK trade mark dispute between Interflora Inc and Marks & Spencer, trade mark infringement was not proved, because the service was not identical or similar to the goods or services offered by the registered proprietors of the marks, and there was no likelihood of confusion.   

Habush’s suit takes a new angle, basing its action on a right to privacy statute that prohibits the use of any living person’s name for advertising purposes without the person’s consent.  It is unclear as to how successful this new approach will be under the relevant US law.

While this issue is unlikely to rear its head in Australia due to an absence of corresponding privacy laws, it serves to illustrate that, if protection is unavailable through conventional avenues such as trade mark legislation or passing off, those who feel harmed will seek alternate and often creative means for redress. 

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