ceedings, it said very little about them, other than making the observation that Cochrane had claimed that the issues in the High Court case were different from those before the ASA.
Rather, the ASA reached its decision not to deal with the matter as follows. It said that the ASA can only deal with advertisements, and that the ASA’s jurisdiction only relates to the content of published advertising. It said that the term “advertisement” is defined in Clause 4.1 of section 1 of the ASA Code to mean “any visual or aural communication, reference or notification which is intended to promote the sale ... of any goods or services”.
This case, said the ASA, did not deal with an advertisement at all. What it dealt with instead was MSystems’ policy of bidding on Adwords like “clear vu”. The ASA put it as follows: “It appears as if the complainant is not taking issue with the actual content or claims of the respondent’s GoogleAds that appear when one does a search for ‘clearvu’, but rather with the fact that the respondent uses the keyword ‘clearvu’ to
There is a clear distinction between the keyword used and the GoogleAds advert that the keyword brings up
“the Adword is not regarded as the advertisement itself, but rather as a trigger that ensures that one’s advertisement is displayed”.
The ASA also referred to Google’s own website regarding Adwords, which the ASA said makes it quite clear that “the ‘ad’ would be regarded as advertising, and not the ‘search terms’ opted for”.
Finally the ASA made the point that, even though Google’s terms and conditions for Adwords (which M-Systems would have agreed to) say that the service must not infringe any advertising codes of practice, this does have the effect of extending the scope of the ASA Code to include AdWords bought on a “behind the scenes” basis.
So Cochrane remains unable to stop its competitor from using its trademark Clearvu as a keyword, something which has the effect that people searching for that trademark get to see ads for M-Systems’ competing product. It sounds so unfair… But it does mean that South African law regarding keyword usage of trademarks is in line with the law in other parts of the world.