BC Court of Appeal Finds It Is Not "Misleading" To Use Competitors Names in Paid KeyWord Search

Interesting reasons for judgement were released today by the BC Court of Appeal addressing professional regulation of paid keyword searches.  This of course has nothing to do with Injury Law, however, as very few professions spend more money on keyword advertising than injury lawyers I thought this decision would be of interest to some of my readers.
In today’s case (Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc.) the respondents “paid Internet search engines such as Google or Yahoo for the use of competitors’ names as a keyword“.
The respondent was precluded from engaging in “deceptive or misleading” advertising by virtue of Bylaw 29(1) of the Private Career Training Institutions Act.  The Appellant was the regulator in charge of this act and sought an injunction preventing this practice.   At trial the judge refused to grant the injunction finding this practice was not deceptive.  The BC Court of Appeal agreed and in doing so provided the following reasons:

6]             Internet search engines commonly sell the use of keywords to the highest bidder for a period of time on the basis that the purchaser’s name will appear at the top of a list of names or in a special section on the first page that appears when a user searches the Internet using the competitors’ name.  The purchaser’s listing may be identified as a “sponsor”, an “ad” or not at all.  Other names appear in an organic list below the purchasing company’s name in an order of priority developed by the search engine.

[7]             For example, a Google search of “Sprott-Shaw Community College” produced a page with a box at the top right of the page containing a list of “sponsored links”– the first one of which was the respondent Vancouver Career College.  Sprott-Shaw also appeared on the page.  A Google search of the term “vanarts” produced a page on the top of which was the name Vancouver Art College, the internet address of which was the respondent Vancouver College of Art and Design.  This was identified as a sponsored link.  The respondent’s competitor, Van Arts school, was listed next below the respondent….

[38]         It is important to understand what this case concerns.  It is not a dispute over intellectual property and the result should not be considered in that context.

[39]         The application before the chambers judge was for an injunction.  The burden was on the appellant to satisfy the judge that there were reasonable grounds to believe that the respondents’ use of keyword advertising was actually or potentially misleading.  He found as a fact that the appellant had not established that the respondents’ keyword advertising was actually or potentially misleading.  He stated that the appellant had not persuaded him that the respondents’ use of its competitors’ names in keyword advertising “could…lead a student astray or into making a harmful error of judgment”.  There was evidence to support those findings.

[40]         In my view, that evidence and the judge’s findings show that he was not satisfied that there were reasonable grounds to believe that the respondents contravened Bylaw 29(1).  There is no basis on which this Court should or could interfere.