By Nicholas Smith -
Snapshot
- The case of Lift Shop Pty Ltd v Easy Living Home Elevators Pty Ltd [2014] FCAFC 75 provides new guidance on the legality of search engine optimisation techniques
- When making a claim that the use of search engine optimisation amounts to misleading and deceptive conduct, a court will look at the conduct of the respondent in its entirety
- If an applicant has rights in descriptive word, the fact that a search for that descriptive word leads to the respondent’s site does not amount to misleading and deceptive conduct if it is clear that customers understand the term is being used in its descriptive sense
- A trademark infringement claim involves a comparison between the trademark and the domain name without external factors. However, the intention of the respondent and the use of the mark by other traders is relevant (though not determinative)
Recently, I was looking for a tree surgeon. I found one by typing “tree surgeon Sydney” into Google. Like thousands of Australians, I find my goods and services through Google and, like thousands of businesses, my tree surgeon gained business almost entirely because of a high Google search engine rank. The power of Google in determining the success and failure of businesses makes search engine optimisation (SEO) crucial, and disputes regarding what is and is not permissible in SEO are becoming more common as businesses struggle to reach the top of a Google search engine ranking. The case of Lift Shop Pty Ltd v Easy Living Home Elevators Pty Ltd [2014] FCAFC 75 involved consideration of a claim of trademark infringement and misleading and deceptive conduct arising from the use of another company’s name and trademark to boost Google search result position. It may assist practitioners in advising clients of the legality of SEO techniques.
