Nonsense.
If Interflora win it will stop people bidding on 'interflora' (or other registered trademarks) not from bidding on descriptive terms like 'flowers'.
Bidding on 'flowers' does not constitute use of the trademark 'interflora' in the course of trade and as such cannot be an infringement. Bidding on 'interflora' does constitute such use and as such might be held to be an infringement.
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As an SEO/SEM I can only see benefits if interflora win.
But on an ethical point of view it should be googles place to monitor adds.
So I hope interflora loose.And from societies point of view I suspect big brands are not a good idea based on there ability to charge top dollar to the gulible.
Earl
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(This should answer deniser's post too)
That itself does not consitute use of trademark 'interflora', no, but I could still easily appear on a trademarked search if the consumer types 'interflora flowers' when one of my keywords is the phrase match 'flowers'
I'm sure a decent lawyer could argue that this would be a direct result of me not using trademarked negative matches, therefore leaving me liable.
Incidentally, for those not savvy with adwords/ppc (apologies if I sound patronising:
Phrase match keywords mean that as long as my keyword is part of of a query entered, my ad will be shown. ie, i have the phrase match keyword 'flowers', my ad could be shown when 'interflora flowers' 'buy flowers' or 'flower bouqets' is typed, et cetera.
Negative match keywords are keywords included in your campaign to ensure any search query which includes your negative match keyword will not show your ad. i.e. if 'interflora' is in my negative keyword list, my ad will not show for any search query that contains 'interflora'
So surely, as the manager of a ppc campaign with this knowledge, it would become my responsibility through use of negative match keywords to ensure my ad does not show for any trademarked term. Which, frankly, is unrealistic.
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Sorry, this really doesn't follow.
The ECJ has held that buying an adword is 'use in the course of trade'.
No-one has ever suggested that one advert appearing next to another advert is use in the course of trade.
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I understood exactly what you are saying and trying to argue but it is very far fetched IMO and way beyond the realms of the law of trademarks and the likely effects of an Interflora win ie the "Google defence" would apply.
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True.
OK, to re-phrase, "Google would have the right to sell the ad space to other companies, but none of those other companies would be able to legally buy it".
It's still illogical.
Steve
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It's not simply a case of 'one advert appearing next to another...' if my advert appears on the query 'interflora flowers' 'comet electricals' 'samsung phones' or anything else trademarked. I could be deemed responsible on the basis I have not taken sufficient steps to ensure my ads don't show on trademarked search queries.
I don't see how it is really. M&S are responsible for knowingly using a trademarked term as one of their keywords. In the previously mentioned instance, I am responsible for knowingly not using a trademarked term in my negative keyword lists.
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Example #2:
If Interflora gets their way and a company bids on "british airways", then that would be illegal. And you think that's right because it's "immoral".
However, if the same company, with the exact same ad, bid on "airways" as a phrase match, their ads would come up for searches for "british airways" and that would be 100% legal and, presumably, you'd think it's "moral".
Exact same company, exact same ad, exact same search phrase triggering the ad. Absolutely no way of someone knowing the difference, unless they could see the password-protected details of that company's adwords account.
But, in one case, it's "immoral", in the other case it's "moral".
Where and what is the moral "line in the sand" that explains that?
Steve
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And the scary thing is that the judge who will rule on this won't know 2% of what you know about internet marketing.
(Or 2% of what I know, or Earl knows or Harry knows.)
Is he going to be able to think of these counter-examples and analogous situations and ensure his ruling handles them properly and fairly?
Of course not.
Whether he gets it right or wrong might be nothing better than a spin of a coin.
Steve
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Incidentally, from a little research I came across LVMH vs. Google which was ruled on by ECJ, LVMH lost.
I haven't read up fully yet so I may stand corrected when I've got time to fully read, but it seems to be the main differences were:
1) The trademark holder went after the publisher, not the competitor
2) ECJ ruled LVMH did not suffer any loss of earnings as the 'competitors' for the trademarked keyword were actually reselling LVMH produce
Therefore, the factors affecting whether ECJ will go against the precedent they set are whether they feel that:
1) Because the claim is being brought against the advertiser rather than the publisher, does it result in a significantly different scenario?
2) Interflora can claim beyond reasonably doubt they have suffered a loss of earnings as a result of M&S's sponsored link.
David, what would your take be?
I haven't read up fully yet so I may stand corrected when I've got time to fully read, but it seems to be the main differences were:
1) The trademark holder went after the publisher, not the competitor
2) ECJ ruled LVMH did not suffer any loss of earnings as the 'competitors' for the trademarked keyword were actually reselling LVMH produce
Therefore, the factors affecting whether ECJ will go against the precedent they set are whether they feel that:
1) Because the claim is being brought against the advertiser rather than the publisher, does it result in a significantly different scenario?
2) Interflora can claim beyond reasonably doubt they have suffered a loss of earnings as a result of M&S's sponsored link.
David, what would your take be?
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Do you honestly believe that would be the case?
It does seem a bit mad, but in my British Airways example, couldn't BA argue that it must have been obvious to me that my keyword would be triggered for searches for "british airways"?
IMO, on principle - and apologies for continuing to naively suggest that laws should be based on principles, rather than technicalities - BA should have a case.
(If interflora win.)
Steve
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A1.Yes, the situation is massively different. Google was the wrong person to sue - the ECJ ruled Google were not using the mark in the course of trade by selling the keyword to the adword user, whereas the person buying the keyword was using it in the course of trade.
A2. Possibly. I think their strongest attack is s.10(3) that the M&S use takes unfair advantage of the Inetrflora reputation.
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D
Deleted member 59730
- Original Poster
- #221
Dear Steve
Quite clearly British Airways would never have a case in the same way that my trademarked name could never be protected in the same way as 'Interflora'. Why? Because BA and myself have trademarked combinations of real words. M&S can use 'flowers', 'home' and 'delivery'. No problem. Likewise EasyJet are a british airway, small caps.
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If that were so then they would also infringe trademarks for Qatar Airways, Virgin Atlantic Airways, Jet Airways, Thai Airways International......
Remember the guide you asked me to give you. I came up with:
Don't use your competitors trademarks in the course of trade unless you have a valid defence (predominantly under s.11 TMA94)
s. 11(2)(b) is of relevance:
A registered trade mark is not infringed by
(b)the use of indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of services, or other characteristics of goods or services,
In your BA example, even if 'airways' were seen to be confusingly similar to 'British Airways', which I very much doubt it would, if the person bidding on it were using it in relation to airways services they have a defence to any infringement action under s.11(2) in that they are using it descriptively of their/goods services.
If Interflora are successful the case won't affect the ability to use generic and descriptive keywords.
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The moral line in the sand is the BA have spent a lot of time and money in building a up a reputation in the name British Airways.
I don't think their competitors should be able to use the BA name to promote their own business. That is in my opinion morally unjust.
Other people bidding on that will push up the PPC costs for BA. This too seems to me to be morally unjust.
'airways' is a descriptive term meaning 'airlines'. No one should be allowed to monopolise this - anyone can bid on it if they want to. This seems morally sound.
The fact that the company name British Airways contains the descriptive term 'airways' is unfortunate for them as it can lead to the situation you describe.
However, at least if Interflora win then BA's PPC budget can be reduced.
Also, the situation you highlight isn't an issue with all those marks that don't contain descriptive components. If Interflora win maybe this will become an important consideration when companies are branding. i.e. call yourself something with no descriptive component - 'Tesco' for example.
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But it's the same ad by the same advertiser showing for the same search result.
Therefore the impact on BA would be identical. So, if one is ok and the other isn't, the argument about economic impact is irrelevant.
And all that's left is an argument about whether someone can type a word into a particular web page. Again, technicalities, not morality.
But, in the 2 scenarios, the advertiser would be promoting their company on this search term to the exact same degree.
So where's the difference morally?
And, as I asked, how does BA tell the difference?
Steve
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If someone bids on a descriptive word then they are presumably interested in providing those type of goods/services. They'll come up every time (if their budget is high enough) that someone searches for the term.
If someone bids on a competitor's trademark they are interested in diverting trade from their competitor. They will come up only when someone is searching for their competitor.
There is a clear difference of intention.
The effect may be somewhat the same, but that's the price someone pays for using a descriptive term in their company name.
Also, as mentioned, if the trademark owner bids on their own company name they will see their PPC costs go up the more people bid on it - this is financially damaging to the trademark owner and clearly wrong.
Well, we could start by doing a search for 'British airways' and see if the advert comes up. If it still comes up when bidding for just 'airways' then they may be bidding for both or just for airways. If there's a serious concern we could file a complaint with Google.
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Yes.
No, they're interested in providing goods and services for people who are interested in that type of good/service.
Only if they have no other keywords in their campaign, which is extraordinarily unlikely.
But this isn't the question I was asking. I was asking what's the difference between the person bidding on "airways" and the person bidding on "british airways".
There's no difference in intention if somone is bidding on a wide range of keywords in that market.
So, it's "**** you, you lose your rights because you picked the wrong sort of company name?"
David, did I tell you I think there's no sense of moral consistency in your arguments?
Oh, dear. They'll have to pay Google the market rate for the traffic. What a scandal!
And what would Google do about it? As we all know, they're not liable.
So, once you've wasted your time doing that, then what would you do?
Steve
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D
Deleted member 59730
- Original Poster
- #230
I am beginning to have a gut feeling that Google will welcome Interflora winning in this case. It will clearly establish that the law regarding trademarks outside the web also applies on it. For the decision to be arrived at without Google's involvement keeps Google 'clean'. Keeping a clean reputation is important for one of the UK's biggest tax cheats.
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I disagree with everything you just said.
Firstly, why should Google want their income restricted?
Secondly, if Google wanted to prevent ads running, they could have agreed to do it as a goodwill gesture.
Thirdly, if Interflora wins, then it doesn't just affect the ads on that results page, it also affects the 9 organic listings on the page that aren't from the Interflora site.
I had no idea Google were a UK company. I guess one learns things every day.
Steve
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Maybe I should explain it differently.
Imagine there's Company A in the USA who decide to sell to the UK. They decide to create a brand new company to do that: Company B.
If it costs Company A £10 to make the items and ship them to the UK, and Company B sells them for £20, does that mean company B makes £10 per sale?
Answer: only if Company A sells the items to Company B at cost. If Company A charges £15, then Company B only makes £5.
My point is that, just because people in the UK buy £x million clicks from Google UK doesn't mean that's profit for Google UK. Google UK may have to buy those clicks from Google Ireland.
Steve
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