Yesterday, boutique IP firm RM Tucker Attorneys notified Afro-IP of their article (Google Adwords - an even clearer picture) in the latest development in Adwords legislation in South Africa, once again involving fencing specialists Cochrane Steel and M-Systems. In this development, Cochrane Steel sought a ruling from the Advertising Standards Authority on the issue keyword bidding.
- Cochrane started advertising its fencing in 2006 under the trade mark CLEARVU.
- In 2010, Cochrane lodged 2 trade mark applications for the CLEARVU trade mark – these were opposed by M-Systems (currently before the Registrar of Trade Marks).
- Cochrane still uses CLEARVU to advertise and sell its fencing.
- In 2012, M-Systems began trading in similar fencing products and it started bidding on the keywords “ClearVu”, Clearvu” and “clear view” on the Google Adwords advertising service. (for further detail on how Google Advertising works, please see this links provided below).
- Other competitors have also started to bid on similar keywords and Cochrane has had to increase its bids on its own trade mark (product name) in order to lessen/decrease the damage as a result of “concurrent use with competitors”.
- The matter has been decided already by the High Court, which held that M-Systems Google advertising practices (i.e. bidding on Cochrane’s trade mark or similar thereto) were not prejudicial to Cochrane’s business – M-Systems was competing fairly and legally.
- None of its advertisements incorporate the word “clearvu”, thus they cannot be construed as implying that M-Systems’ product is the same as Cochrane’s.
- It alleged that Cochrane was merely trying to prevent fair competition by lodging unfair complaints.
‘… any visual or aural communication, representation, reference or notification of any kind which is intended to promote the sale, leasing or use of any goods or services; or which appeals for or promotes the support of any cause. Promotional content of display material, menus, labels, and packaging also fall within the definition. Editorial material is not an advertisement, unless it is editorial for which consideration has been given or received.‘