Internet Keyword Advertising the Subject of a BC Supreme Court Case

In Private Career Training Institutions Agency v Vancouver Career College (Burnaby) Inc, 2010 BCSC 765, Justice Gaul of the BC Supreme Court found that Vancouver Career College’s (VCC’s) use of keyword advertising, whereby searches on Google and Yahoo! for certain other institutions resulted in VCC being displayed as a sponsored link, was not false, deceptive or misleading. VCC is subject to the BC Private Career Training Institutions Act, SBC 2003, c 79 (Act). Bylaw 29, enacted under the Act, prohibits institutions such as VCC from engaging in advertising that is false, deceptive or misleading. VCC extensively used keyword advertising on the Internet, whereby a link to VCC’s web site would be displayed as a sponsored link in response to searches for certain keywords. VCC had apparently bid on more than 7,000 keywords though Google and Yahoo!, including the names of several institutions that offered programs similar to those offered by VCC. In the absence of previous Canadian jurisprudence regarding keyword advertising, Justice Gaul considered US cases on point, as well as Canadian jurisprudence developed under trade-mark law. As a result, he considered the primary issue was the likelihood of confusion in the mind of the average consumer between VCC and the institution whose keyword was used to trigger the display of VCC’s sponsored link. Evidence was presented that two people had actually mistaken VCC for other institutions; however Justice Gaul dismissed these incidents as simple mistakes, holding that the distinction was clear to a viewer, or should have been, simply by paying a reasonable amount of attention to the search results. In the absence of any other evidence that VCC intended to mislead consumers, he found that VCC did nothing wrong, likening its approach to the generally accepted practice in traditional media of locating an advertisement close to a competitor’s. Justice Gaul went as far as to write: “Not only do I find there is nothing wrong with that, I think the option to examine a number of institutions offering similar educational programs is a good one for the consumer.” For the full text of the decision, visit: http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc765/2010bcsc765.html Summary by: Tom Feather