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29 June 2017Trademarks

Canadian court tells Google to de-index infringing seller

Canada’s Supreme Court has ordered Google to remove a website of a company from its global search results.

In a 7–2 judgment in its decision handed down yesterday, June 28, the Supreme Court held that Google must de-index the entire website of Datalink Technology Gateways, a company which had been found to have unlawfully relabelled and sold products of a competitor.

Equustek Solutions, a technology company in British Colombia, had accused Datalink, while acting as a distributor, of relabelling one of Equustek’s products and passing it off as its own.

According to Equustek, Datalink had also acquired confidential information and trade secrets belonging to the technology company, using them to design and manufacture a competing product.

Equustek sued Datalink in April 2011 and in September of that year, Datalink was ordered to return any source codes, board schematics and any other documentation it had that belonged to Equustek.

“Despite court orders prohibiting the sale of inventory and the use of IP, Datalink continues to carry on its business from an unknown location, selling its impugned product on its websites to customers all over the world,” said the Supreme Court, as background information.

Equustek then approached Google in September 2012 and asked it to de-index Datalink’s website, but Google refused so Equustek brought court proceedings.

Google then asked the technology company to obtain a court order prohibiting Datalink from carrying on business on the internet, saying it would comply with such an order by removing specific webpages.

In December 2012, the Supreme Court of British Columbia issued an injunction, ordering Datalink to cease operating or carrying on business through any website.

Between December 2012 and January 2013, Google de‑indexed 345 specific webpages associated with Datalink, but didn’t de-index all of Datalink’s websites and limited the de-indexing to searches conducted on google.ca.

“De‑indexing webpages but not entire websites proved to be ineffective since Datalink simply moved the objectionable content to new pages within its websites, circumventing the court orders,” explained the Supreme Court.

Equustek then sought an interlocutory injunction to enjoin Google from displaying any part of Datalink’s websites on any of its search results worldwide.

It obtained the injunction and the Court of Appeal of British Columbia dismissed Google’s appeal.

The dispute found itself at the Supreme Court, which also rejected Google’s appeal.

“The appeal is dismissed and the worldwide interlocutory injunction against Google is upheld,” said the court.

Google was a “determinative player” in allowing harm to occur to Equustek, said Justice Rosalie Abella, on behalf of the court.

The search engine had raised freedom of expression concerns and challenged the “propriety and necessity of the extraterritorial reach” of such an order.

“This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods,” she said.

A Google spokesperson said: "We are carefully reviewing the court’s findings and evaluating our next steps."

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