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On the way into the office today I noticed a bunch of tweets along the lines of 'Interflora wins EU PPC case vs M&S'.
I have just read the ruling in full, and I don’t interpret it as a win at all, but there are some key takeaways that you need to be aware of if your brand is involved in bidding on competitor trademarks.
In May 2008 Google told UK advertisers that they could bid on competitor keywords. Shortly after that M&S started to bid on the ‘Interflora’ keyword. The florist (or florists, since it is actually a network) didn’t care for M&S’ strategy and instructed its lawyers to go to work.
The case was first heard in the UK and subsequently elevated to The Court of Justice of the European Union, which yesterday made its judgement.
Interflora wrote a blog post in which it states that it is “delighted with the ruling”. I’m a little surprised at that, because I don’t see it as an outright victory. Far from it.
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. If it did then M&S may find itself in water of indiscernable temperature (possibly hot).
The EU ruling
The core ruling is that trademark owners are “not entitled to prevent advertisements displayed by competitors on the basis of keywords corresponding to that trademark”. By which INTERFLORA, as it is legally known, cannot stop M&S from bidding on the term ‘Interflora’.
But as with all of these things the devil is in the detail. Trademark law is incredibly dense, and there appear to be lots of grey areas, but my understanding is that while trademark owners cannot stop competitors from bidding on their trademarks on platforms like Adwords, they are nevertheless protected in various ways.
Brand bidding is still something that you can undertake. Such usage “as a rule, falls within the ambit of fair competition”. Unless certain lines are crossed...
Competitors who do bid on trademarks need to be very, very careful about the text used in ads.
There are three things you must not do, under any circumstances…
1. Ads must not cause reputational damage to the owner of the trademark, nor to the trademark itself. M&S was wise not to use the ad text: "Interflora sucks. Buy your flowers at M&S."
2. Ads must not make it difficult for internet users to determine who is selling the advertised goods or services. If M&S had implied that it was part of the Interflora network then it would have been in trouble.
3. Ads must not take “unfair advantage of the distinctive character or repute of that trademark”, nor should they damage or dilute the character or repute (for example by turning the trademark into a generic term).
The full judgement can be found here. I’d love to hear your views on whether I have interpreted this correctly, and what the judgement means for brands.
The real winner of course is Google, as it's going to be increasingly important to bid on your own trademarks, rather than allowing organic search to do its job.