Were members of the class likely to have been misled or deceived by the use of "realestate1.com.au"?
136 REA's complaint, as expounded at trial, was narrower than that made by its pleadings in a number of respects. As this part of the case was run at trial, no serious attempt was made to establish that when clothed in its logo, colour and other brand elements, the term "realestate1.com.au" was insufficiently distinct from the name, logo and other brand elements of realestate.com.au to be misleading or deceptive. REA did not press that the use of the impugned domain name on Real Estate 1's residential property portal was misleading or deceptive. Even if that were established, there was no connection made in the evidence between that conduct and any damage to REA, or why the relief sought by REA is otherwise justified.
137 The focus of REA's case was the use of "realestate1.com.au" in a URL on search results pages. That was the doorway at which traffic intending to go to REA's realestate.com.au portal could be diverted to Real Estate 1's residential property portal. As expounded at trial, REA's case was that such a diversion had likely occurred as the result of specific conduct and in specific circumstances. REA's contention was that a consumer familiar with one of its websites and intending to gain access through a search engine would be diverted to Real Estate 1's residential portal because the consumer would either:
(i) see the additional "1" in "realestate1.com.au" in the URL of an organic search result or a sponsored link and assume that the website concerned was affiliated or connected with REA; or
(ii) not see the additional "1" in "realestate1.com.au" in the URL of an organic search result or a sponsored link and click onto a Real Estate 1 search result believing that the consumer was accessing the realestate.com.au portal.
138 I will consider first the contention that the use of realestate1.com.au suggests an affiliation with REA's residential portal.
139 I have found earlier that a small difference in the name of a rival of realestate.com.au will likely suffice to avoid consumers being deceived. REA accepted that whether a sufficient difference exists in the name of a rival is a question of degree. REA pointed, by way of example, to the name of one of its primary rivals "realestateview.com.au" as being sufficiently differentiated from "realestate.com.au". It contended however that "realestate1.com.au" was on the wrong side of the line. Real Estate 1 argued that the additional "1" is sufficiently prominent and is a signal of disassociation rather than of association for anyone familiar with realestate.com.au.
140 Much of REA's focus was placed on there being only one keystroke difference between the two terms. However, the current analysis presumes that the additional "1" has been noticed. Although noticed as a single digit figure, the additional "1" will be understood to represent the word "one". When the term "realestate1.com.au" is read, whether read out aloud or not, the figure "1" will be of no less prominence to the mind of the reader than if the word "one" had appeared instead. The word "one" seems to me to be not significantly less distinctive than "view" when read between "real estate" and ".com.au". An additional single keystroke which does not connote a word would be quite different. For instance, the addition of an "s" to create "realestates.com.au" may not amount to a sufficient differentiation. However, in the case of the additional "1", its limited physical presence is not a true reflection of its prominence.
141 There are other differences between "realestate" and "realestate1" which belie their physical similarities. One is a concocted word the other is not. The term "realestate1" is recognisable as a name or brand, "realestate" is not. In a context where ".com.au" may be given little attention, those differences are significant.
142 Whether the figure "1" when attached to another term will be perceived as an indication of association, or alternatively of disassociation, is, I think, dependent on placement and context. The figure "1" like the term "plus" may be utilised to express an extension of, or a derivative of, a brand or a name. Such a device will usually be placed at the end of a name or brand and not in the middle. It is a device which could suggest an association when placed next to an identifiable name but does not have the same effect when placed next to a descriptive term. That point can be made by reference to two of the names in play in this case. To my mind, the term "realcommercial1.com.au" suggests an association with the entity or brand "realcommercial". The term "realestate1.com.au" far less so, because "realestate", for the reasons already explained, does not suggest an entity or brand.
143 Mr Coker founded his conclusion that some consumers may assume an affiliation or association on two bases. He raised the possibility that a consumer would perceive realestate1.com.au to be a "sub-domain or mirror site" of the realestate.com.au website. This suggestion was based upon the existence of an internet convention in which a numeral is added to the "www" element of the URL to denote a mirror site (eg www1.brand.com). Mr Coker suggested that a consumer who does not have knowledge, or who has insufficient knowledge of how URL's are structured would be more likely to confuse the URL to be a sub-domain or mirror site of realestate.com.au, than an individual who had sufficient knowledge of how URL's are conventionally structured. Mr Coker's evidence raised this prospect as a mere possibility and, in my view, the possibility is more hypothetical than real. I would not ascribe to the 'ordinary' or 'reasonable' persons in the class an appreciation of the existence of the technical convention relating to sub-domain or mirror sites.
144 Secondly, Mr Coker thought there was a possibility that a consumer would assume that realestate1.com.au was a variant of and thus affiliated with realestate.com.au if the consumer had a poor recall of the name "realestate.com.au". On the other hand, Mr Coker also thought there was a possibility that a consumer with a poor recall who was confronted with a page or list in which variants of "realestate.com.au" were commonplace, would see each as different, separate and unassociated.
145 I accept that an erroneous assumption of affiliation as a consequence of poor recall is possible. The extent to which it would happen or likely happen was not the subject of Mr Coker's evidence or any other evidence. However, even assuming occurrences of that kind to be significant, I do not regard any erroneous assumptions of affiliation based upon poor recall as necessarily flowing from the conduct of Real Estate 1. Lack of recall will at least in part be a function of the indistinctive name chosen by REA. That kind of confusion is the kind that Stephen J said "was not anything to which s 52 is directed".
146 For the reasons earlier identified, consumers will be more vigilant in the context of a market where close variants of "realestate.com.au" are common on a search results page. Consumers will likely recognise that the use of "realestate" as a central feature in many domain names on the page to be a consequence of the natural applicability of the term to a real estate portal. Small differences in description from the descriptor of the article being traded are likely to be perceived as marks of distinction as between many traders rather than an indication that one trader is utilising a variety of descriptors for its product or brand. I think the better conclusion is that a consumer with ordinary recall specifically looking for "realestate.com.au" on a search page who sees the "1", will not be misled or deceived into assuming an affiliation between the portal being searched for and "realestate1.com.au".
147 I turn then to consider the second kind of deception alleged by REA based upon the consumer failing to notice the additional "1". This was REA's primary contention upon which most of its submissions were based.
148 REA tendered a small number of examples in which the term "realestate1.com.au" appeared embedded in the URL element of an organic search result. Other examples of organic search results for Real Estate 1's residential property portal were tendered by Real Estate 1. There were no examples tendered of searches in which sponsored links appeared for Real Estate 1's residential property portal, however the evidence included the specific content of sponsored links and allows for the form and content of those sponsored links to be reconstructed. In the period 1 April 2009 to 31 January 2012, Real Estate 1 ran 10 different search engine marketing campaigns. A report from Google AdWords provides the text of the various sponsored links used by Real Estate 1 in those campaigns. That report was annexure "ROM-23" to the affidavit of Ryan McAvoy ("the ROM-23 report").
149 It is helpful to set out some examples from the evidence of search results for Real Estate 1's residential property portal. The following is an example of an organic result:
Real Estate Listings - Search & Find Property for Sale & Rent…
www.realestate1.com.au/
Search and find all types of real estate in Australia. Use our unique search by street,
filter by agency, agent, suburb or region for your next home, land package…
("The first example")
150 The following are examples of sponsored links reconstructed from the ROM-23 report:
Real Estate 1
www.realestate1.com.au/real-estate
Looking for real estate in VIC. Look no further than realEstate1
("The second example")
Find Real Estate
www.realestate1.com.au/
Our aim is to make searching for real estate pure, simple and fast!
("The third example")
Echuca Real Estate
www.realestate1.com.au/Melbourne
Rent/Buy/Sell real estate in Echuca. Contact realEstate1.
("The fourth example")
151 What is immediately apparent from the above examples, is that the content of search results deployed by Real Estate 1 differed. In some, the term "Real Estate 1" was used in the heading. In others "realestate1" was used only in the URL. In yet others the use of the term in the URL was accompanied by a reference to "Real Estate 1" in either the heading alone, the descriptive text alone or in both.
152 REA's contentions, and in large part the evidence of Mr Coker, focussed upon a search result in which the only cue to the identity of the source business to which the result related, was the "realestate1.com.au" cue in the URL. The first example was referred to as a "typical" search result. The evidence does not support that assertion.
153 REA's contention was essentially that whenever presented in a URL on a search results page before a consumer searching for the realestate.com.au website, the term "realestate1.com.au" was a representation that was demonstrably false.
154 Some words spoken or written may be demonstrably false, without a consideration of the context or surrounding circumstances in which they were stated. However ordinarily, in order to characterise the nature of the representation in question, it is necessary to take into account the context or surrounding circumstances in which the words were presented: ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 at 380 (French J). As French J there said: "Where the name and get-up of a product are in issue, the question for the purposes of s 52 is whether they are misleading or deceptive in the circumstances."
155 It is well established that in considering whether consumers are likely to be misled or deceived, "whether or not conduct amounts to a misrepresentation is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances": Taco Bell at 202 (Deane and Fitzgerald JJ). In Campomar, the High Court referred to that observation with approval and emphasised that, "[t]he matter should not be considered in the abstract" and that, "[r]egard must be had to the circumstances of the particular case" (at [99] and [100]).
156 One of the obvious circumstances that must be considered in relation to an impugned representation is what else was said or done on the same occasion. A search result, as the examples above show, is a short three or four line message. Unless a basis exists not to do so, the whole of the message should ordinarily be taken into account when characterising the representation that it conveys on a particular subject matter. In this case, the relevant subject matter is the identity of the portal business to which the search result relates. Cues as to the identity of a portal business to which a search result relates may be found in the heading, URL or descriptive text of a search result. Additionally, beyond the search result itself, there may be other contextual circumstances on the particular search results page that may be relevant and which must be considered in determining whether readers were likely to be misled.
157 There was no issue that in a search conducted by a consumer looking for realestate.com.au by name, an organic result for that website would consistently appear at the top of the organic search results shown on the first results page. Mr Hudson's evidence was that part of his job for REA was to monitor how different websites rank on a search results page when the term "realestate.com.au" is used as the search keyword. His evidence was that invariably in relation to such a search, a search result for Real Estate 1's residential property portal would not appear before page 5 and suggested that it commonly appeared well below that page.
158 I have already referred at [133] to an example of a search conducted using the keyword "realestate.com.au". Whilst a result for the realestate.com.au website appeared as the first organic result, there is no result at all for Real Estate 1 in the 100 organic results shown. Another example in the evidence, this time for a search for the keyword term "real estate", shows a result for the realestate.com.au website as the first organic search result. Across the 100 search results shown in the example, the term "realestate" appears embedded in 28 URLs. The term "realestate.com.au" appears embedded in ten URLs. A search result for Real Estate 1's residential property portal does not appear until the bottom of page 8, some 80 entries later than that for REA's residential real estate portal.
159 There are two examples in the evidence in which an organic search result for Real Estate 1's residential property portal appeared on the first page of the search results. It was not suggested by REA that those two examples should be regarded as likely to have resulted from a consumer searching specifically for the realestate.com.au website. The first relates to a search with the keyword search term "houses for sale Melbourne". In that example results for the realestate.com.au website appear as the first three results. A result for the "realestateview.com.au" website appears as the sixth result and Real Estate 1 has the eighth result. The second example relates to a search using the keyword search term "property for sale". Results for the realestate.com.au website appear as the first and second organic results. A result for the realestateview.com.au website is the fourth result and a result for Real Estate 1 appears as the eighth result on the page.
160 It was not suggested by REA that a consumer familiar with the names of its residential property portal will always be misled, when reading "realestate1.com.au" in the URL element of a search result, into thinking that the website to which the search result refers is the realestate.com.au website or an associated website. If a consumer sees the additional "1" in the URL, then REA's evidence given through Mr Coker acknowledges that where the consumer has good recognition of the name "realestate.com.au", the consumer will likely assume that the URL is the address of a different and unrelated website. That must be so, as the 'ordinary' or 'reasonable' persons in the class will know that URLs are unique.
161 REA's contention was that deception was likely because the similarity between "realestate1.com.au" and "realestate.com.au" would cause many consumers who were searching for "realestate.com.au" to miss the additional "1" and thus assume that the URL they were looking at was REA's residential portal.
162 To evaluate that contention, it is necessary to consider the manner in which a consumer who knows the realestate.com.au portal by name and is searching for that portal specifically, is likely to deal with the search results displayed. The 'ordinary' or 'reasonable' consumer I have in mind is a consumer who has sufficient brand recollection of the name "realestate.com.au" to be able to recall that name.
163 I do not consider that REA can make out its case in relation to consumers who have an imperfect recollection of the name of the portal the consumer desires to visit. In the context in question, a consumer who is searching for a portal recalled by the consumer as "real estate something" and ends up at Real Estate 1's website has not been misled or deceived. As I said earlier, if such persons have been diverted, the fault may lie with the adoption by REA of a name insufficiently distinctive to have facilitated its recall. A sufficient nexus between any conduct of Real Estate 1 and any misconception by the consumer is not established in that circumstance: Campomar at [98].
164 Given that the relevant consumer will know the website by name, he or she will most likely type "realestate.com.au" or "www.realestate.com.au" into the search bar when initiating the search. In the expectation that organic search results are primarily ordered by reference to their relevance to the keyword searched for, such a consumer will head for the first organic result because that is where the consumer will expect the clickable link to the desired website to be found. On the evidence before me, a consumer who typed in "realestate.com.au" or a variant thereof will invariably have found an organic result for the realestate.com.au website at or near the top of the first page.
165 In this process, the consumer is looking for an identity cue to confirm the website searched for. A natural place to look for that cue is the URL. As the consumer expects to see "realestate.com.au" embedded in the URL at or near the top of the organic results, I accept that it is possible that the consumer will scan the URL without noticing an additional "1" between "real estate" and ".com.au", if contrary to the consumer's expectation, "realestate1.com.au" is embedded in the URL at or near the first organic result.
166 In those circumstances, I think that a not insubstantial number of consumers may well miss the additional "1" in the URL. In a URL both "realestate.com.au" and "realestate1.com.au" appear in the same font and in small print. The distinction between the two terms is confined to the additional "1". Whilst I consider that most 'ordinary' or 'reasonable' consumers involved in the scenario here contemplated would see the difference, I accept that many would not.
167 However, there is no evidence whatsoever to suggest that in relation to a search of the kind here being considered, an organic result for Real Estate 1's residential property portal has ever appeared at or near the top of the organic results or indeed on the first five pages. On the evidence, I am not satisfied that a not insignificant number of consumers have or were likely to have been misled or deceived in the manner here considered.
168 My consideration of this issue has only so far dealt with the issue of deception at the top of the organic results. Any deception of that kind is at least in part, a product of the expectation of the consumer that realestate.com.au will be found at or about the first result. Once the attention of the 'ordinary' and 'reasonable' consumer moves away from the first result and to the rest of the search results page, that expectation will no longer be in play and the 'ordinary' or 'reasonable' consumer may be expected to be vigilant to notice small differences on a page riddled with references to "realestate" and "realestate.com.au".
169 Whilst evidence of actual consumer confusion can be of great weight (Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 at 658 (Dixon and McTiernan JJ)), none was directly called by REA. The circumstantial evidence that REA relied upon to suggest that in the order of 2,000 consumers who had specifically searched for its website were deceived into choosing an organic search result for Real Estate 1 because they had missed the additional "1" in the URL, was not persuasive. REA relied on two reports which evidenced the keyword search term utilised by consumers who had visited the realestate1.com.au website having got there by clicking on an organic search result for that site. On about 2,000 occasions the keywords utilised were "realestate.com.au" or a close variant thereof. REA also relied upon other evidence which showed that a high proportion of visitors to the realestate1.com.au website left the site after only viewing the first page and that the most popular site visited thereafter was the realestate.com.au website. That evidence was said to demonstrate the realisation of error and its immediate correction.
170 The evidence of the consumer behaviour in question was open to a number of explanations not necessarily consistent with deception. The evidence of time spent by such consumers on the realestate1.com.au site did not consistently suggest the realisation of error and immediate correction. The evidence that the most popular next visited site was realestate.com.au does not lead to the conclusion REA has asked me to draw. That evidence was general and not specific to those consumers searching for REA's website. It is unsurprising, given the overwhelming popularity of REA's website, that the next most popular visited site was realestate.com.au. That pattern would likely apply in relation to all residential property portals.
171 There are, however, two overwhelming difficulties in the Court drawing the inference that REA invites the Court to draw from the circumstantial evidence which REA suggested identified some 2000 deceptions. The first is that in relation to the same period to which the evidence relied on by REA relates, Mr Hudson's evidence was that an organic result for Real Estate 1 did not appear before page 5, when a search was conducted using the keyword term "realestate.com.au". I have great difficulty in inferring that a searcher looking for realestate.com.au who travelled to page 5 or later before coming across a result for Real Estate 1, would have been deceived in the manner REA suggests. Secondly, most of the 2,000 instances relied upon occurred in three months of the 22 month period covered by the reports. The trend over the 22 month period shows relatively few visits per month to Real Estate 1's residential portal said to be the result of deception. Why there was an extraordinary spike of allegedly deceived visitors in January to March of 2010 was not explained other than a suggestion in REA's submissions that Real Estate 1 was active with search engine optimisation in the period in question. No evidence was pointed to in support of that bare assertion. In any event, the assertion is inconsistent with Mr Hudson's evidence. If Real Estate 1 was particularly active during those three months, that activity was not reflected in the observations made by Mr Hudson.
172 It is also necessary that I express my view on the issue of causation. Even if I am wrong as to the likelihood of deception, in the context in question (ie the use of "realestate1.com.au" as an internet address), I would not be satisfied that a sufficient nexus is established between Real Estate 1's conduct and any deception. It needs to be remembered that REA makes no complaint about the use of "realestate1" alone. It only complains about the use of that term when ".com.au" is attached to it. That the TPA may be used by one competitor to deny another the capacity to attach the common suffix ".com.au" to its trading name (in this case, its registered trade mark) when that name and the suffix is used as an internet address, is a troubling thought. Stephen J in Hornsby held at 231 that to deny to traders the use of a locality prefix in association with a wholly descriptive phrase like "art gallery" would involve treating s 52 of the TPA as "the source of a newly created monopoly heretofore unknown to the law and likely to deter new entrants into a field which ought to be open to legitimate competition". His Honour found it difficult to contemplate any less likely legislative source for such a consequence.
173 In my view, a suffix like ".com.au" is, relevantly, of no different character to a locality prefix of the kind which Stephen J had in mind. It seems to me therefore that where a consumer mistakenly associates ".com.au" when appearing in an internet address as a part cue for "realestate.com.au" the mistake is attributable to the adoption by REA of the most common element of an internet address as a part of its trading name in combination with a descriptive second-level domain. Because ".com.au" is descriptive, it is equally applicable to any business of a like kind: Hornsby at [229] (Stephen J) and Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 at 857 (the Court). Any loss of custom is the risk that a company takes when it chooses to incorporate into its own name words that are merely descriptive: British Vacuum Cleaner Company at 328 (Parker J). It is "the price to be paid" for the advantage of a descriptive trade name: Hornsby at 229 (Stephen J); Cadbury Schweppes at 857 (the Court).
174 The difficulty for REA raised by the evidence that an organic search result for Real Estate 1 appeared at least 5 pages beyond where a result for realestate.com.au first appeared, did not extend to sponsored links. There was evidence that Real Estate 1 bid for sponsored links and that in the period 1 April 2009 to 31 January 2012 over 400,000 clicks to its realestate1.com.au website were generated from sponsored links with Google. The ROM-23 report showed the content of those sponsored links. Although there was no direct evidence as to their positioning or likely positioning on a search results page, the general evidence as to the positioning of sponsored links suggested that mostly, sponsored links appear on the first search results page either above or to the right of the first appearing organic results.
175 REA contended that on at least 10,000 occasions between 1 April 2009 and 31 January 2012, a consumer who searched for the realestate.com.au website by name in a Google search engine, was misled into triggering a sponsored link for the realestate1.com.au website. REA relied upon two AdWords reports (Annexures ROM 11.1 and ROM 11.2 to the Affidavit of Ryan McAvoy) which recorded visits made to Real Estate 1's residential property portal after a consumer clicked onto a sponsored link for that portal. The reports were formatted by reference to various keywords used by searchers. Of the more than 14,000 visits recorded, at least 10,000 related to visits generated by keyword searches suggestive of the domain name "realestate.com.au". Although I have some reservation, I am prepared to infer that a substantial number of the 10,000 consumers here in question held an intent, at the time they initiated the search, to access the realestate.com.au website.
176 REA contended that the consumers in question must have had their attention drawn to the URL displayed in Real Estate 1's sponsored link. Its contention is that having seen the URL containing the term "realestate1.com.au" and having failed to notice the "1", the consumer was misled into believing that by clicking the heading he or she would arrive at the realestate.com.au website.
177 I do not accept that the evidence establishes that REA's contention is the likely explanation for why these consumers arrived at Real Estate 1's website.
178 As I have previously said, an 'ordinary' or 'reasonable' consumer who had typed "realestate.com.au" into a search bar in order to bring up a hyperlink to that site, would have expected the hyperlink to be shown at the top of the organic results. Such a person would understand the difference between an organic result and a sponsored link. Like all 'ordinary' or 'reasonable' users of search engines, such a person would regard an organic search result to be a more reliable source for the information searched for than a sponsored link. Such a person has no reason to look to a URL in a sponsored link for an identity cue.
179 However, advertising is designed to draw the interest and attention of people who had no prior intent to engage with it and that purpose is often achieved. The evidence demonstrates that the attention of the consumers here in question was in fact drawn to Real Estate 1's sponsored link. The real question is - what was it in the sponsored links that drew their attention? REA's contention is based on a consumer who has not carefully read the search page but who has scanned it and whose attention has been drawn to Real Estate 1's URL in a sponsored link. The eye of a consumer looking for an organic result may well have scanned across a sponsored link. However, in a scan of that kind, the consumer's eye is far more likely to be drawn to the heading of a sponsored link rather than a domain name embedded in a URL. Not only is the heading more visible but it is also the place where the advertiser is able to ply its trade.
180 People looking for information about real estate will likely have a particular geographic location in mind. It is plausible that a consumer who has searched for a particular property portal may be diverted from that path by a reference in a sponsored link which happens to identify the very geographical location the searcher had in mind. Not only is such an explanation plausible in a general sense, it is an explanation supported by the evidence upon which REA relied.
181 In the period 1 April 2009 to 31 January 2012, Real Estate 1 ran ten different search engine marketing campaigns. The ROM-23 report shows the text of the various sponsored links used by Real Estate 1 for those campaigns. The further AdWords report shows the keywords bid for by Real Estate 1 for each sponsored link in the various campaigns and the number of clicks a successful bid generated ("the ROM-20 report").
182 Of the just over 420,000 clicks generated by the ten campaigns, one campaign ("the Real Estate Locations Campaign") was, in relative terms, an outstanding success. The Real Estate Locations Campaign generated over 384,000 clicks. The campaign was designed to target searchers looking for property in one of some 1,800 suburbs or towns in Victoria which Real Estate 1 decided to target. Putting some minor exceptions to one side, the sponsored links for the campaign were nearly all in the same form apart from the named location which varied from one sponsored link to the next. The sponsored link for Echuca shown at [151] as the fourth example was typical of the sponsored links used in this campaign.
183 To generate sponsored links for the Real Estate Locations Campaign, Real Estate 1 bid for a wide range of keywords. Many of the keywords bid for included a particular location for instance - "Croydon real estate". However, Real Estate 1 also bid for keywords suggestive of the term "realestate.com.au". Most of those bids were for broad match keywords, although there were some for phrase match keywords. A successful broad match bid for keywords containing a combination of "real", "estate", "com" and "au" would be triggered by a search for the keywords "realestate.com.au" or variants thereof such as "real estate com au".
184 Keywords of that kind (ie those capable of being triggered by a keyword search for "realestate.com.au" or like terms), that were bid for by Real Estate 1 as part of the Real Estate Locations Campaign, generated over 14,000 clicks. Each of those successful sponsored links contained text like that contained in the Echuca example shown as the fourth example. The most successful sponsored link was for the Melbourne suburb of Research. That generated 11,865 clicks having been triggered by Real Estate 1's broad match keyword bid for "realestate au".
185 The evidence is supportive of the fact that the sponsored links used in the Real Estate Locations Campaign were displayed to many if not most of the body of searchers that REA suggests were misled. Given that to access the realestate1.com.au website each of the consumers in question would have had to place the cursor of their computer on a clickable heading like "Echuca Real Estate", it is far more likely that if those consumers were diverted they were diverted by a reference in a heading of a sponsored link to a particular geographical locality.
186 Perhaps the best example in the evidence of the kind of diversion that likely occurred relates to the single searcher whose keyword search was "advertise on real estate com au". That search can be traced through the AdWords reports. It triggered a Real Estate Locations Campaign sponsored link for "Echuca" which is the fourth example. The link was generated by Real Estate 1's phrase match bid for the keywords "advertise on real estate com au". I have little doubt that the searcher here in question was headed for the realestate.com.au website searching for a specific page which would provide information on how to advertise property on that website. Despite the searcher's intent to go to a highly specific webpage, the searcher must have placed his or her cursor on, and clicked onto "Echuca Real Estate". Unless the click occurred unintentionally, it is highly unlikely that it occurred without the searcher having altered the intent that he or she held when the search was commenced.
187 I accept that it is possible that such a searcher may have been diverted to a Real Estate Locations Campaign sponsored link by the heading and then clicked onto that link thinking that he or she was being taken to realestate.com.au's website because of the searcher's mis-reading of the URL. However the evidence in the ROM-23 report shows that all but a tiny minority of the sponsored links used in the Real Estate Locations Campaign contained text that referred to Real Estate 1 by name in the descriptive text. The descriptive text in the sponsored link typically ended with the following words - "Contact realEstate1"; or "search realEstate1"; or "Visit Real Estate 1 now". As I have said, it was not disputed that the name "Real Estate 1" is sufficiently differentiated from "realestate.com.au". An 'ordinary' or 'reasonable' member of the class familiar with realestate.com.au by name and who had read the text of the sponsored link is not likely to have been misled or deceived into believing it was an advertisement for realestate.com.au. Whilst its possible some may not have read the descriptive text, the numbers involved are not likely to be significant. In any event, for the reasons already given, in my view an erroneous assumption based upon Real Estate 1's use of ".com.au" in a URL does not have a sufficient nexus with any deception caused by Real Estate 1.
188 There is evidence that in the less successful campaigns run by Real Estate 1, some sponsored links were used in which the only identity cue given was in the domain name in the URL. Again, I do not consider that REA has established a sufficient nexus between the use by Real Estate 1 of its domain name in an internet address and any deception. In case I am wrong as to the sufficiency of a nexus, I should add that in relation to sponsored links of the kind to which I now refer, REA did not identify any evidence which established a connection, or a likely connection, between the clicks made on the sponsored links concerned, to consumers familiar with realestate.com.au by name and searching for the realestate.com.au website.
189 Finally, there is also a further category of visits to Real Estate 1's sponsored links (shown at C1938 the ROM-20 report) which the evidence there given suggests may have been displayed on search results pages generated by a searcher searching for the realestate.com.au website. However, the evidence does not provide the content of those sponsored links. It is therefore not possible to consider the context in which the use of "realestate1.com.au" in the URL occurred.
190 On the available evidence of Real Estate 1's organic results and sponsored link activities where "realestate1.com.au" was used in a URL on a search results page, I am not satisfied that REA has established that a not insubstantial number of 'ordinary' or 'reasonable' persons in the class have or were likely to have been misled or deceived. I turn now to explain two matters relevant to those conclusions which require further exposition.