M&S getting sued by Interflora for competitor PPC

[ian]

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Look out, here comes a landmark case from Interflora

Interflora sues Marks & Spencer for buying its brand name - Telegraph

[Azam.net]

Thanks for pointing that out.

The article doesn't appear for some reason anymore, but is on many other websites.

If Interflora wins it will set a very dangerous precedence.

[gadget]

If Interflora win, I'm assuming it will have an impact on Google's policy too.

[Shane]

yikes.. can't say as I'm surprised ... has been a long time coming.. be interesting to see what happens and if google get drawn into it all.

if I had to pick a company which would try to sue over brand/kewyords .. interflora would have been in my top 3.. seem to recall megolamania on their part regarding using the keyword "flowers" a few years ago so anyone bidding on their brand is lucky not to have had a horses head in the post !

If Interflora win, I'm assuming it will have an impact on Google's policy too.

wouldn't bet on it.. Google REALLY need cash.. really bad.. that share price is down.. so they may be like a bar serving drinks.. they keep serving all day long up to you if you drink and drive or go home and beat the mrs isn't it.

[nim-b]

wouldn't bet on it.. Google REALLY need cash.. really bad.. that share price is down.. so they may be like a bar serving drinks.. they keep serving all day long up to you if you drink and drive or go home and beat the mrs isn't it.

I agree. Even if Interflora win the case, they will win against M&S, not Google. I don't think the court would rule that its up to Google to police this activity, just as it isn't up to a magazine to make sure all adverts in it conform to ASA regulations.

That's the reason Google changed their policy, its not that they worked out trademark bidding was ok, but they will be pretty certain its not their problem if it is illegal. So I doubt they'd change their policy back, they would just make it clear its up to advertisers to conform.

Will certainly be an interesting and landmark case, and I think its much needed. Some kind of legal clarity in PPC advertising has been a long time coming.

[djbarker]

wouldn't bet on it.. Google REALLY need cash.. really bad.. that share price is down.. so they may be like a bar serving drinks.. they keep serving all day long up to you if you drink and drive or go home and beat the mrs isn't it.

funny - they've just announced they're allowing 'hard liquor' ads in the states again!

[Paul Wright]

Note the M&S ads on the contextual ad block in the article. I wonder if in instances like this they can be used to support/defend the article?

[djbarker]

According to the wonderful out-law.com the argument is based on the 'Trade Marks Act 1994' & these particular bits:

• Section 10(1) is breached by making use of a sign which is identical to another's trade mark, in the course of trade, in relation to goods or services identical to those for which the trade mark is registered.
• Section 10(3) is breached by making use of a sign which is identical or similar to another's trade mark, and where the use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the reputes of the trade mark.

Sounds like it all hangs on what 'making use of a sign' means.

Is it a sign if nobody sees it? If a tree falls in the forest when it's not a door, is it ajar?

[bazza99]

Will be interesting to see how it pans out.

In some senses, I don't see competitors bidding on keyword terms as being any different to having an ad appear in a newspaper or magazine next to a feature/news item relating to their competitor.

That's an editorial decision for the newspaper/magazine editor, just as allowing ads to show on certain pages (search results pages in this case) is an editorial decision for a website publisher.

[kier]

funny - they've just announced they're allowing 'hard liquor' ads in the states again!

It's weird in the states, there are some counties which actually still have prohibition. I'm living in Jersey City at the moment and you can't buy spirits after 10pm!

[Hero]

In some senses, I don't see competitors bidding on keyword terms as being any different to having an ad appear in a newspaper or magazine next to a feature/news item relating to their competitor.

That's an editorial decision for the newspaper/magazine editor, just as allowing ads to show on certain pages (search results pages in this case) is an editorial decision for a website publisher.

This is contextual placement. However, bidding on a trademarked term is not.

[bazza99]

Hero,

I'm not so sure (and not so sure that's how the law will see it either). A Google search results page is simply a web page, much like any other.

If I create a page on my site relating to merchant x and include adsense on that page then there's a strong possibility that I'll be showing ads relating to merchant y (a competitor in the same field).

Similarly, if I create a page on my site relating to merchant x, then I might also include an affiliate link to merchant y (offering visitors to my site an alternative option).

If Interflora are successful in this action then that could change the playing field completely.

Also, how about if M&S pages start appearing on page one of the "natural" search results on Google when someone searches for the term "interflora"? How is this any different?

A lot of law suits on the way if Interflora are successful here.

[TomSmith]

Surely Interflora don't own the SERP for the term 'interflora'. On that basis, why should they have a say on who advertises in that space? As long as M&S didn't use Interflora's term in their ad copy, I don't see the problem.

[bazza99]

Surely Interflora don't own the SERP for the term 'interflora'. On that basis, why should they have a say on who advertises in that space? As long as M&S didn't use Interflora's term in their ad copy, I don't see the problem.

That's pretty much how I see it.

[djbarker]

If I create a page on my site relating to merchant x and include adsense on that page then there's a strong possibility that I'll be showing ads relating to merchant y (a competitor in the same field).

Yeah - the result is similar. But the process by which the result is reached is very different. 90% of the time the law looks at process ("how was he killed?")rather than outcome ("is he dead?").

In this case, part of the argument is that someone from M&S (or working on their behalf) has gone into their AdWords account and "[made] use of a sign which is identical to another's trade mark, in the course of trade, in relation to goods or services identical to those for which the trade mark is registered". interflora seem to think that sticking their trademarked name in a keyword list amounts to that.

Obviously loads of companies do this every day - & we assume it's fine. I hope the court says "yep - fine - carry on brand bidding" too.