The Federal Court of Australia has held that it is not an infringement of a competitor’s registered trade mark: (i) to use the trade mark as a keyword for triggering a Google AdWords sponsored link, or (ii) to use the trade mark in the text of the sponsored link in its descriptive sense.

In Veda Avantage v Malouf Group, the court decided that it was not trade mark infringement to use the trade mark as a keyword because that was not a “trade mark use” – i.e. it was not a use of the trade mark to distinguish the advertiser’s services from those of others. Rather, it was a use to identify Internet users who may have an interest in using its services.

The finding that there was no trade mark use was supported by the fact that the advertiser’s use of the trade mark as a keyword was “invisible” to consumers. It was not possible to conclude that the advertiser’s use was a trade mark use when consumers “have not seen or otherwise perceived the keywords”.

The judge distinguished the decision of the Court of Justice of the EU in Google France on the basis that that case had not considered whether the purpose for which the keyword was used was to distinguish goods or services of one person from those of another.

The court also found that, with one exception, use of the trade mark in the resulting sponsored links was not trade mark use. Rather, the use of the trade mark was descriptive.