Update on Interflora vs Marks & Spencer AdWords trademark row
Everybody is keeping a close eye on the Interflora vs Marks & Spencer case which we first covered back in December. Unlike a lot of other similar cases this one will probably go the distance simply because of the brands involved.
The latest update has a screenshot which shows M&S are still bidding on the Interflora keyword – there are no other PPC ads showing for me which indicates nobody else wants to get involved.
If this case goes the distance the implications for brand bidding could be quite significant.
The High Court in London has decided that the law is not settled on whether brand bidding on a competitor’s brand is lawful and has referred certain questions to the European Court of Justice for determination. This clearly goes against Marks and Spencer’s position that the practice is “not unlawfulâ€. The High Court has denied Marks & Spencer permission to appeal to the Court of Appeal in respect of the nature of the questions referred to the European Court of Justice.
In his judgement, Mr Justice Arnold commented that Google’s decision to operate a different policy in the UK and Ireland to that in the rest of Europe is “fairly remarkable given that the relevant law is, or should be, essentially the same throughout Europe.â€
Patrick Altoft is Director of Search at Branded3, a Leeds SEO & Digital Agency specialising in SEO, Web Design, Development & Social Media.
Comments
Read the 18 comments below, or add your own!
Should it not be up too Google to decide this? I mean, it’s their service.
Google can’t really decide whether something is legal or not.
I’ve just done the same search for Interflora and there’s also a PPC ad for flowers-for-all-occasions.co.uk – anyone else?
Yep I see flowers-for-all-occasions.co.uk too
How does this work exactly? I have limited experience with AdWords though recently set up a PPC campaign for a mobile phone provider where I set up ads for a BlackBerry/Vodafone promotion – as it turns out I was able to include Blackberry in the ads but not Vodafone due to trademarks – so there appears to me to be something in place already, though is this only for certain brands??
You can’t include a trademarked term in the ad text (blackberry must have slipped through because it’s also a real word). M&S is bidding on the keyword “interflora” but isn’t using it in the advert text – this is allowed by Google but Interflora doesn’t like it.
I can see this one falling in the favour of M&S – reason being, many people use a brand name when searching for a type of service – it’s plausible that someone would type “interflora” when searchING for a “home delivery service for flowers” as it’s easier and quicker to type, M&S would probably argue that they are alerting searchers that they too offer such a service. This came to me when watching an old episode of Alan Partridge:
“Error two, right, Frankenstein is a zombie. He’s a type of zombie. It’s like people who say Tannoy when they mean public-address system. Tannoy is a brand name”
“Error two, right, Frankenstein is a zombie. He’s a type of zombie. It’s like people who say Tannoy when they mean public-address system. Tannoy is a brand name”
It’s quite plausible that people would use a brand name when searching for a particular service.
But the point of a brand name (or trade mark) is to identify just one trader’s products or service out of all of the competing ones on offer, rather than a “type” of product or service.
A brand name is desirable because of the goodwill and reputation its owner has built up by careful marketing and investment. Taking advantage of this without permission is contrary to UK trade mark laws. The brand itself is also endangered if others, especially competitors, are allowed to use it as a generic term e.g. linoleum, escalator.
Of interest, Google has published Guidelines for Third Party Use of Google Brand Features to try and prevent its own name from becoming a generic term :
“If trademarks are not used properly, they may be lost and one of the company’s most important assets may lose all of its value. Rights may be lost not only because of a trademark owner’s improper use of the mark, but through improper use of the trademark by the public. ”
http://www.google.co.uk/permissions/guidelines.html
It’s a tough one for the Court in Marks & Spencer as it has to be seen to be balancing interests of the consumer with brand owners but it should be remembered that trade mark laws exist to protect the consumer as well.
I think that the only way around it is for the Court to base the decision on who is deemed to be “using” the trade mark that is the Adword but can it ignore the fact that it is a profit-making activity?
Jo
This is yet another case of the law failing to keep up with the marketplace, and it is no surprise that this dispute has rumbled on, bearing in mind the involvement of Google and Marks and Spencer. Surely, the whole area of online advertising is in need of a legislative review so that this kind of dispute can be prevented before it begins.
Trademark laws exist to protect the consumer, in this case M&S do not claim, suggest or in anyway appear to be interflora they make clear exactly who they are. The consumer is not being misled in anyway. If a brand name calling themselves interflorer were to advertise using interflora as a keyword then maybe people could be misled.
As long as M&S don’t mind others doing similar when searching on google for their products it would seem ok. Trademark law is not the same as copyright or patent protection.
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September 18, 2009 at 5:08am