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In May 2008, Google began permitting advertisers in the UK and Ireland to bid on trademark keywords through AdWords. Needless to say, this concerned and upset many brand marketers at the time.

Yet there appeared to be little that could be done. Google's policy change was predicated on the notion that legal questions over the use of trademark keywords in the UK had been settled.

Not so fast says floral powerhouse Interflora. In December 2008, it sued Marks and Spencer and Flowers Direct Online for bidding on the 'Interflora' keyword through Google AdWords. Interflora alleged violations of its rights under the Trade Marks Act 1994.

In March 2009, Flowers Direct Online settled with Interflora and agreed to stop bidding on the 'Interflora' keyword -- for the time being. Yet Interflora's case against Marks and Spencer continued on and interestingly, it appears that the case law may not be as settled as some thought.

A post on the Interflora Blog today details where the case stands today:

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 unlawful”. 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.”

The plot thickens.

Interflora is currently waiting for the European Court of Justice to issue its ruling. That ruling could have significant implications, especially in light of the fact that Google, brands and advertisers have largely been working on the assumption that bidding on trademark keywords, as disturbing as it may be in some quarters, was legal.

If the European Court of Justice rules against Marks and Spencer, it appears that Google may have little choice but to reverse its policy in the UK and Ireland. This could get very interesting very quickly.

[Hat tip to Blogstorm's Patrick Altoft who flagged this up]

Photo credit: brookenovak via Flickr.

Patricio Robles

Published 2 September, 2009 by Patricio Robles

Patricio Robles is a tech reporter at Econsultancy. Follow him on Twitter.

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Comments (6)

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Will - Arena Flowers

Ha. Correct me if I'm wrong (and, ahem, I'm fairly familiar with this case myself in my professional capacity) but this "story" is really old news; the referral to the ECJ happened months ago and no ruling is expected before the new year. As for Patrick's hat tip; it's hardly surprising he knew about it, given his company is, erm, doing the SEO for Interflora (no?) and has recently been building stories on their new blog?

Patrick's clearly doing a good job though; he's convinced you to give him two nice hot links, one for IF, one for his own blog, plus some nice retweets and sphinn action to boot.  Not bad going.  Hey, if I imagined we could get links by just recyclying ancient news, I would too! Good on him.  ;-)

almost 7 years ago

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mia

this must be old news, Interflora who? I thought they had gone bust years ago!

almost 7 years ago

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Paul Smith

Patrick's clearly doing a good job though; he's convinced you to give him two nice hot links, one for IF, one for his own blog.

Says the guy who has clearly only commented for a link back to his site....

almost 7 years ago

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Will - Arena Flowers

Erm, right, sure I did Paul. Because, you know, no followed links in comments are really valuable, right? Haha.  I comment on econsultancy from time to time and it ain't for the links, but hey you can think what you like.

I was originally going to post without saying where I was from just in case someone didn't understand nofollow links but but thought that posting anonymously would be cowardly and would undermine my claim to actually know about this case (I do). 

However, more than happy for the peeps at econsultancy to remove the link to Arena from my previous comment.  Hey and on this comment, I've linked my name to your site, as you clearly think nofollowed links are valuable so enjoy the (nofollowed) juice!

Haha.

almost 7 years ago

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Paul Smith

Yep thanks for that link,

Sent another 48 visitors to my blog today meaning thats 48 more people seen my ramblings than would have if we hadn't had this little discussion.

I remember the days a link was just the fabrication of the internet, not just for SEO value.

From an online PR aspect you making a comment (and including your link to your site) being a competitor is obviously going to make further discussion and drive people to your site.

It's not all about seo, links are a great way for people to actually find your website too  - do you remember those days?

If we want to look at it from an SEO perspective your comment is little more than link bait, "oh look a competitor has something to say...." which will undoubtedly send links to your site as they refer the comment because people with blogs struggle for inspiration to write anythign meaningful.....

So do I stick byu my comment, yes of course I do.... your response has not been thought through and has more holes than, well something that has lots of holes in it.... *roles eyes*

almost 7 years ago

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Ron Channon

So ' Moving on' as they say, does anyone have any information regarding the pending European Court ruling on trademark infringement. I am specifically referring to The Interflora v Google Adwords dispute. This topic has gone very quiet over the past year, is the case still awaiting judgement?

It is true I have a vested interest in the outcome of this case, as my own company 'Golfplan' Insurance has suffered from trademark infringement ever since Google turned a blind eye to anyone that was prepared to pay Google Adwords to ride on the back of someone elses registered trade mark.

Following my first written complaint to Google, that two rival golf insurance companies were obviously using my registered trademark 'Golfplan' in their back page website metatags, Google upheld my complaint and within 21 days had removed my trademark from both websites. Clear evidence that they were worried about being sued under 'English Law' for this infringement. It later emerged that this was due to some pending Court atctivity in America where they were being sued by different companies who were suffering from the same type of 'Trademark' infringement, and were waiting for the ruling.

Much to everyones suprise the ruling went in favour of Google, so the flood gates opened, overnight it was 'Open Season' as now anyone could bid on a competitors registered trademark using Google's Adwords ranking system. So guess what? within days the same two competititors were back bidding on my brand, along with a few more who also decided to jump on the band wagon.

Without doubt this judgement handed Google an unrestricted licence to go out and literally print money! in any currency anywhere around the world where Google were active, to the detriment of anyone who thought they were fully protected by law under 'Intellectual property rights'

Without doubt this is the biggest legal money making scheme operating in todays market place, and it must be earning them,not millions,or billions, but trillions of dollars! all at someone elses expence.

For those out there that may have missed the point of what is happening here, just enter my registered trademark 'Golfplan' into the Google search engine and note how many competitors appear following this action. That is only happening because Google allow it to happen, encourages it to take place, and is making a fortune at the same time.

This is why I am particularly interested in the European Court Ruling, and more importantly a ruling under 'English Law'. Why, because I have to believe that no British Judge would ever make the same stupid judgement this side of the pond.

Meanwhile,  common sense prevails, as it appears the British banks have seen the light and got together, agreeing not to bid on each others brand names, well that would certainly have reduced the flow of cash into Google's bank account!! and I understand the Supermarkets are doing the same thing.

So 'Good luck' Interflora, if you pull this one off and win the case, I will be the first to send you 'A bouqet of flowers'!!!

Ron Channon

Manging Director

Golfplan Insurance

almost 6 years ago

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