Misrepresentation and Infringement of words: Competitor pay per click campaigns
Competitor pay per click campaigns are where a company bids for the name of a rival in the hope that a customer or client who searches for a particular company will not notice when a similar company, rather than the company they selected, appears in the search suggestions/engines on the internet/google.. This practice has always been regarded as a little underhand. A competitor pay-per-click campaign comes perilously close the misrepresentation and infringement issues.
Victoria Plum (formerly Plumb) Limited v. Victorian Plumbing Limited
Victorian Plumbing Limited had mounted a pay-per-click campaign and had been bidding for the keywords – Victoria Plum and variations of the name – on Google.
This has led to activation for Victorian Plumbing Limited rather than Victoria Plum Limited.
Due to this Victoria Plum Limited brought proceedings against Victorian Plumbing Limited claiming trade mark infringement Victorian Plumbing Limited as a result of bidding in a pay per click campaign for Victoria Plumbing Limited.
Further, Victorian Plumbing Limited brought a counterclaim for passing off against Victoria Plum Limited for the similar act of bidding.
What court held?
Court did not consider the Victorian Plumbing Limited argued as a “honest concurrent use” based on the fact that both firms had been in the same market since 2001.
Further, the judge held that Victorian Plumbing Limited had built up goodwill by the time Victoria Plum Limited started their campaign.
Consequently, a substantial amount of customers were likely to have assumed that Victoria Plum Limited was actually Victorian Plumbing Limited or connected to the company.
The judge concluded that this amounted to misrepresentation which was likely to cause damage to the brand. Hence, the court held for trade mark infringement made by the complainant.
It came to the observation by the court that when internet visitors were particularly searching for Victoria Plum Limited’s products and services that confusion was occurring on a significant scale, hence, therefore the infringement claim was valid.