Adwords battle comes to an end

The Supreme Court of Appeal dismissed security fencing company Cochrane Steel’s appeal to overturn the high court judgment on South Africa’s first Google Adwords case last week confirming that the use of a trade mark as a keyword in a Google Adwords system does not constitute unlawful competition or passing off.

The high court was faced with the case involving two competitors, where the one made use of the other’s trade mark as a keyword in its Google Adwords campaign for its competing product / service and the question was whether this amounts to passing off, a form of unlawful competition, or trade mark infringement.

The SCA also found that the use of the keyword in the Google Adwords system for advertising does not cause confusion for the web user.

Accordingly, internet advertisers still need to be cautious and ensure that the use of the mark does not give rise to any likelihood of confusion.

It still remains to be seen how our courts will deal with the issue of visibility of the trade mark in the advertisement itself or of a registered trade mark and whether this will be allowed in South Africa.