Google AdWords: Victory for Google against the ACCC in the High Court of Australia

Focus: Google Inc v Australian Competition and Consumer Commission [2013] HCA 1 Services: Intellectual Property & Technology, Commercial Google has emerged victorious in its six year battle with the Australian Competition and Consumer Commission ("ACCC") over the extent of Google's liability for misleading and deceptive conduct in relation to its AdWords program.

The High Court of Australia1 has overturned the decision of the Full Court of the Federal Court in 20122 and denied businesses an easy target when defending their brands from misuse under the Google AdWords program.

We have previously written about the earlier decisions in this case here and here.

The history

The ACCC brought proceedings against Trading Post Australia Pty Limited and Google Inc under the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) for misleading and deceptive conduct in relation to the "sponsored links" in Google search results.

The origins of the issue lay in Google's AdWords program and the ACCC's concerns that Google's search results were misleading or deceptive, or were likely to mislead and deceive, because:

"organic" search results were not properly distinguished from the paid for advertising "sponsored links" and the sponsored links published by Google consisted of a headline containing a trading name or brand name of an advertiser's competitor but which also served as a clickable link to the advertiser's website. In 2011, the Federal Court decided in Google's favour on both these issues.3 Even though the advertisements in question contained...