If you've ever run a Google Adwords campaign you'll have thought about bidding on your competitors' brand name. An interesting legal case involving Interflora and Marks & Spencer has come to a semi conclusion at The Court of Justice of the European Union. I say "semi" conclusion because I'm not entirely sure what's been concluded as both sides could appear to be claiming victory.
The case dates back to 2008 when Google told UK advertisers that they could bid on competitor keywords. M&S started to bid on the ‘Interflora’ keyword. Interflora were unhappy and challenged this as an infringement on its trademark. The Europen Court ruling basically states that trademark owners are “not entitled to prevent advertisements displayed by competitors on the basis of keywords corresponding to that trademark”. So Interflora as an organisational entity, cannot stop M&S from bidding on the term ‘interflora’.
On their blog, Interflora state: "This judgment goes much further than previous rulings by saying that the use by a competitor of a keyword identical to the trade mark in relation to identical goods or services has an adverse effect on the investment in the trade mark where that use substantially interferes with the brand’s reputation and its ability to attract and retain consumers."
However, they go on to acknowledge that the case has been referred back to the UK, where a court will make a final call on whether or not Interflora’s trademark has suffered any reputational damage as a result of the M&S paid search campaign. Clearly M & S seem unconcerned. I've just googled "interflora" and there's their ad in position number 2 (under Interflora's own). For a bit of fun I also googled "marks and spencer flowers" and guess what the number 2 ad is? No, it's not Interflora, it's John Lewis!
There's further comment and a message trail on Econsultancy's blog about this if you want to follow the story.