In 2009, the British High Court was asked to weigh in on the long-standing dispute between Interflora and Marks and Spencer, which centered on Marks and Spencer’s bidding on ‘Interflora‘ as a Google AdWords keyword. It referred the matter to the European Court of Justice (ECJ).
The Advocate General ECJ has finally answered: Marks and Spencer violated Interflora’s trademark.
If the ECJ accepts the Advocate General’s findings, it will pretty much be settled: in Europe, bidding on the name or trademark of a competitor will be little more than a strategy for getting sued.
Not surprisingly, Interflora is pleased. In a statement, an Interflora representative writes:
Interflora is very encouraged by the Advocate General’s findings which,
if followed by the Court of Justice of European Union, will strengthen
Such a ruling will enable brand holders across
Europe to deliver quality service and ensure that trade marks guarantee
the origin of the goods bought by consumers online.
Obviously, there’s an argument to be made that bidding on a trademark meets the definition of infringement. Earlier this year, a court in the United States came to a similar conclusion, and even awarded damages for lost profits.
Infringement or not, however, the suggestion that consumers are somehow confused by these AdWords ads is questionable.
After all, it’s hard to imagine that a significant number of consumers performing a search for ‘Interflora‘ and clicking on an ad for Marks and Spencer are not going to realize that they’re not on the Interflora website.
The truth of the matter is that for most companies, bidding on competitors’ trademarks is probably a waste of money anyway, assuming of course that you’re not intentionally trying to confuse the origin of goods (eg. with a misleading landing page, etc.).
Is it possible that a consumer searching specifically for ‘Interflora‘ might click on a Marks and Spencer ad and make a purchase? Sure. But this is probably not a prime advertising opportunity.
From this perspective, I can’t help but think that Interflora may be doing Marks and Spencer a favour by denying it the ability to spend money on ads that aren’t likely to be the best performing anyway.