Interflora sues Marks & Spencer over Google ad links

[harryboon]

I agree however surely their legal team would have said to stop the ads until case is sorted out

Maybe not but if someone was taking me to court I would stop unless I was very sure I was going to win.

Google allows them to bid, so they assume it's ok to bid.

Morally, why should there be a problem? It's people looking for flowers, which is what they're selling. They're not passing off and they're not slagging off Interflora, they're just advertising their wares to people searching on Google.

Steve

 

[deniser]

When is the judgment expected anyway?

 

[deniser]

I agree however surely their legal team would have said to stop the ads until case is sorted out

Maybe not but if someone was taking me to court I would stop unless I was very sure I was going to win.

Stopping the ads would probably be seen as an admission of wrong doing.

 

[harryboon]

Very true - but I wonder what the other companies like ASDA are think?

Stopping the ads would probably be seen as an admission of wrong doing.

 

[deniser]

Very true - but I wonder what the other companies like ASDA are think?

Probably that nothing will happen to them until the case is decided. And even if they were sued and damages were awarded, it would be pennies to them.

 

[harryboon]

OK so we have all discussed this issue for the last few days, and thank you to everyone who has joined in.

So what do we think is going to happen?

Interflora will win or lose - Yes or No?

Can we do polls on here?

 

[directmarketingadvice]

I agree however surely their legal team would have said to stop the ads until case is sorted out

Do you mean the legal teams of these 2 sites? Their ads just appeared. Maybe the lawyers' letters were sent out today?

We have no idea.

I think that they might just be bidding on words because they know Google relaxed its trademark policy a while back and have inferred that that means it's been decided that it's 100% legal to advertise.

Steve

 

[Sproston]

OK so we have all discussed this issue for the last few days, and thank you to everyone who has joined in.

So what do we think is going to happen?

Interflora will win or lose - Yes or No?

Can we do polls on here?

I'd be interested to know what people think would happen as opposed to what they hope!

 

[deniser]

I think Interflora will win. Just my opinion.

 

[Deleted member 59730]

This has been going on since 2008. The Interflora vs. Marks & Spencer case was referred from the English courts to the European Court of Justice in June 2009, but the case only began its ECJ hearing this week.

 

[harryboon]

Yes I mean the legal teams for say M&S & ASDA.

Do you mean the legal teams of these 2 sites? Their ads just appeared. Maybe the lawyers' letters were sent out today?

I didn't know this had been going on since 2008, well M&S have really put two fingers up to Interflora if this has been going on this long.

Personally I still think Interflora will lose, not because I want them too, but I just can't see this happening.

I see pro's & con's with whatever happens to be honest

 

[magico]

i agree with you,

 

[harryboon]

I am glad you do magico lol

i agree with you,

 

[David Warrilow]

If anyone is interested we've written a little summary of what's going on:

http://www.londonip.com/ip_article_october_2010.html

Cheers

 

[dagaul101]

I am surprised these type of events is not a regular occurence, it's actually surprising someone took note of these particular ads, and since they were a large enough company they could do something about it

 

[Newcott]

Quite a few people saying Interflora would lose:

http://www.retailgazette.co.uk/articles/34310-ms-ads-infringed-interfloras-trademark

 

[cjd]

Excellent news and quite right too. A little bit more here:

http://www.computerweekly.com/Artic...fringed-Interflora-trademark39-in-AdWords.htm

 

[cjd]

<..cough..>

I think it's sharp practice personally and it seems that Interflora have a reasonable chance of succeeding on this one - I hope so, I don't see why another company should benefit from the use of my brand.

 

[directmarketingadvice]

I wouldn't get too carried away. See bolding below:

"This [Advocate General's] opinion is based heavily on the particular facts here - namely that the trademark 'Interflora' denotes a commercial network of florists providing certain services and products. However, it will bring some comfort to brand owners that in such situations where members of the public could believe that the competitor is a member of their commercial network, they can prohibit the use of their trademark as an AdWord."

If you're not known as a network that includes different companies in the same market, the reasons for Jääskinen's decision wouldn't apply.

Steve

 

[UKSBD]

I would love to know if M & S used an outside agency to set up their AdWords.

I wonder if the individual person who added Interflora as a keyword (if anyone did) is still working for them and whether he will be made scapegoat.

 

[UKSBD]

"it will bring some comfort to brand owners that in such situations where members of the public could believe that the competitor is a member of their commercial network"

Which is basically what I said back in post 134
http://www.ukbusinessforums.co.uk/forums/showpost.php?p=1390292&postcount=134

If I see M&S advertising as Interflora I would assume they were part of the Interflora network.

 

[JohnnyCash]

Excellent news and quite right too. A little bit more here:

http://www.computerweekly.com/Artic...fringed-Interflora-trademark39-in-AdWords.htm

I don't see what is excellent about it. There is very little difference to M&S bidding on an Interflora keyword, than to paying for an advertising billboard outside of an Interflora shop.

As long as they are clearly saying M&S in the title, there won't be any mistake as to where people are going. Everyone is used to Google showing related searches via Adverts...

 

[cjd]

All that's been said over and over in the thread....

 

[Mike Seddon]

OF course this could all have been very clever PR for Interflora. Look how much everyone is talking about them.

 

[VeryMark]

The Advocate General has now given his opinion on this in the case which has been referred to the European Court of Justice, which you can read in full here.

Whilst the Advocate General's opinion is not binding, it seems likely from this that Interflora will succeed in this particular case, on the basis that the sponsored link purchased by M&S may lead some people to believe that they are part of the Interflora network.

 

[cjd]

Doesn't go far enough IMO - the 'network' part is a get out for all the other brand parasites....

 

[JohnnyCash]

Doesn't go far enough IMO - the 'network' part is a get out for all the other brand parasites....

Lol... calling them parasites is a bit much. Its a smart business decision to put your brand in a place where its going to be seen by your competitors potential customers...

Should Tesco be banned from advertising anywhere near Asda? As its effectively the same thing.

From a user point of view its a good thing to have other brands showing in Google, as long as they are not allowed to appear above the brand they are bidding on. Its offering choice.

 

[andygambles]

At first I agreed that this was a stupid case to bring by Interflora. However I am now starting to see some of the argument based on the ruling.

It is based on the fact that the layman may think that M&S is part of the Interflora network.

Taken another way an example may be "Network Q" which is the vauxhall approved repair network. These garages can be individually run but be part of the "Network Q" brand. A garage could bid on the "Network Q" keywords but not be associated with the network in any way or mention it on their website or collateral. The end user may believe it is a "Network Q" garage even though they are not.

 

[TheseWordsAreMyOwN]

Could somebody save me the bother of ready this entire thread and please inform if Interflora won their case?

I presume they lost since M&S are still bidding on their name in Google searches?

 

[VeryMark]

The case has not yet been decided finally as the European Court of Justice (ECJ) has to consider the Advocate General's Opinion and hand down a decision, following which the English High Court has to consider the ECJ judgement and then issue its own decision.

However, it seems likely that Interflora will win, based on the Advocate General's Opinion.

 

[TheFridge]

If Interflora do win, doesn anybody know if this gives trademark owners 'carte blanche' over who bids on their terms?

I'm an online retailer who purchases wholesale from a manufacturer of electrical items. However, this manufacturer also sells direct through their own website.

Would they be allowed to stop me from bidding on their brand or products? I'm in their commercial network, but also a competitor as such.

Probably a stupid question but just want to clarify how much control brands may now have.

 

[cjd]

Nothing has changed yet and it looks likely that even if/when it does, the finding will only apply to brands that own or manage networks ie like Interflora that has hundreds of outlets inside other shops.

In the Interflora vs M&S case the judge found that people could think that M&S were actually offering an Interflora service - which they weren't.

We''l have to wait for something less specific to apply outside that quite tight description.

 

[RadiusBPO]

Update on this, the EU has made a ruling and it's now up to the UK High Court to finalise. Although I really don't understand the judgement from the EU and there are a number of different opinions.

Here is the actual ruling from the EU:
http://curia.europa.eu/jurisp/cgi-b...&ydatefe=&nomusuel=&domaine=&mots=&resmax=100

Here is Interfloras statement - they seem happy:
http://blog.interflora.co.uk/ecj-ruling/

Here is an analytist saying M&S will win??!?:
http://www.businessweek.com/news/20...-over-trademarked-keywords-eu-court-says.html

I think it means that bidding on trademarks is allowed but not using the trademark in the ad??

Opinions??

 

[directmarketingadvice]

“Where the advertisement displayed on the Internet on the basis of a keyword corresponding to a trademark with a reputation puts forward an alternative to the goods or services” of the trademark owner, without imitating it or harming its reputation, “such use falls, as a rule, within the ambit of fair competition,” the Luxembourg-based EU court said.

They've seen sense.

Steve

 

[JElder]

There's some more on it here:

http://www.splicemarketing.co.uk/_blog/Splice_blog/post/Trademark_Terms_in_Google_Adwords/

Basically, as long as there is no confusion, you can do it. More of a victory for M&S, and their ads are still running right now...

 

[JohnnyCash]

Yeah, I don't see why Interflora are trying to spin this as a victory (outside of trying to harvest backlinks from the publicity).

Having read the documents this morning, it definitely doesn't look like a victory, or "the end of brand bidding" if you were listening to Interfloras seo company...

 

[UKSBD]

I think it all boils down to the whether people assume M & S is a store that sells different brands.

If you asked the average man in the street if this looks wrong it would be interesting to see the results.

M & S have a special offer this week on

Panasonic Washing Machines
Sony Televisions
Toshiba Laptops
Interflora Flowers
Ralph Lauren Polo Tops
Ninetendio Wii
Dyson Vacuum Cleaners

Personally up until this case I would have assumed M & S sold all of the above.

 

[andygambles]

I think it all boils down to the whether people assume M & S is a store that sells different brands.

If you asked the average man in the street if this looks wrong it would be interesting to see the results.

M & S have a special offer this week on

Panasonic Washing Machines
Sony Televisions
Toshiba Laptops
Interflora Flowers
Ralph Lauren Polo Tops
Ninetendio Wii
Dyson Vacuum Cleaners

Personally up until this case I would have assumed M & S sold all of the above.

M&S do sell branded goods such as Sony Televisions, Nintendo Wii, Dyson Vacuums etc.

Which is what the crux of this case was (or my interpretation of it anyway). Interflora were arguing that consumers may assume that M&S was part of the Interflora group and therefore ordering flowers from M&S came from Interflora.

 

[UKSBD]

M&S do sell branded goods such as Sony Televisions, Nintendo Wii, Dyson Vacuums etc.

Which is what the crux of this case was (or my interpretation of it anyway). Interflora were arguing that consumers may assume that M&S was part of the Interflora group and therefore ordering flowers from M&S came from Interflora.

Is that not what I just said?

 

[directmarketingadvice]

Which is what the crux of this case was (or my interpretation of it anyway). Interflora were arguing that consumers may assume that M&S was part of the Interflora group and therefore ordering flowers from M&S came from Interflora.

Yes, so Interflora could still win this case.

However, given the EU ruling, would they really get much in the way of "compensation"?

Surely it's just a case of M&S following acceptable practice that may happen to be a bit confusing because of the nature of Interflora - rather than then knowingly breaking the rules.

In which case, wouldn't it be that a fair ruling would just be that M&S have to stop the ads?

(Or, arguably, that M&S are found to be following the rules and Interflora have to pay costs.)

Steve