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.