Interflora sues Marks & Spencer over Google ad links

[SEO Lady]

I took over an Adwords account for a client maybe 13 months ago, at that time he was bidding on a well-known brand competitor which was the best performing click-through Adword campaign.

Yes, best performing, but had the lowest conversion rate.

My analogy would be 'Nice, M&S do flowers ... but they're not Interflora, best go back'

 

[harryboon]

If I am searching for say a new Audi and a BMW ad pops up, I am really going to click on the BMW ad after searching for Audi?

I think the chances are fairly slim don't you?

I personally think Interflora is making a mountain out of a mole hill. And what will this be costing them to sue, big bucks I would say, are that many people really clicking on M&S ads to warrant suing?

ps. my google chrome doesn't seem to be showing any sponsored links at all this morning, anyone know why?

 

[herodigital]

there are two viewpoints here - one would be that all is fair in love and war (and business), the other would be that it's not customary to fish in another's pond.

i just find it entertaining that these stories grab headlines.

 

[directmarketingadvice]

I'm not sure I follow this, could you elaborate?

d

Orgainic listings - e.g. google is showing them at #1 for "flower delivery".

They're not paying Google for that, yet I bet it's making them a load of money.

Steve

 

[directmarketingadvice]

If I am searching for say a new Audi and a BMW ad pops up, I am really going to click on the BMW ad after searching for Audi?

Maybe, maybe not.

It depends on what part of the buying process you're at.

If you're at the "I want to buy a car, so I'll research my options, starting with the Audi A4", then maybe the BMW ad will make you interested in learning more about that car.

If, on the other hand, you're at the stage where you've decided to buy a particular car and are looking for a price, then you probably won't click on the ad.

I can tell you I have clients who make sales from searches on competitors' names... and I don't know anyone with 100% conversion from organic traffic that came in via their own name.

What does that tell you?

As I understand it, part of the decision in the Google v Geico case based on the idea that, just because someone searches on your company name, doesn't mean (a) that they're going to buy from you and (b) that they only want to visit your website.

An accurate reflection of search behaviour, IMO.

Steve

 

[cjd]

They're not paying Google for that, yet I bet it's making them a load of money.

Steve

If Google didn't work that way, people wouldn't us it as a search engine - it ain't charity

 

[deniser]

The ASDA ad which follows the M&S one is even worse in that it is designed specifically to entice customers away from Interflora by using the £9.75 price. Everyone in my office said they would click on the ASDA one first because the flowers are perceived to be cheaper.

 

[directmarketingadvice]

The ASDA ad which follows the M&S one is even worse in that it is designed specifically to entice customers away from Interflora by using the £9.75 price. Everyone in my office said they would click on the ASDA one first because the flowers are perceived to be cheaper.

Bravo for Asda!

Steve

 

Correct me if I am wrong but would not the logical extension of this be that no one would be allowed to use the name of there product supplier without expressed permission.?:|

Earl

 

[omnivore]

i should think the major reason why interflora are pursuing this case so energetically is down to the nature of their structure.

(i think) individual members pay fees to the organisation to be part of it and in return get all the benefits of a global network etc. the chairman/md in operations like this get MASSIVE pressure from the individual members and country representatives about all sorts of things that they DEMAND are sorted out. regardless of the legal merit of the complaint, i think the chairman/md would have to fight this due to that pressure, otherwise they would not get the support necessary to stay in their jobs.

i agree with steve
they will lose

 

[directmarketingadvice]

Correct me if I am wrong but would not the logical extension of this be that no one would be allowed to use the name of there product supplier without expressed permission.?:|

Earl

Including the organics?

I see #2 for the keywords "Interflora" is a voucher site that has the brand name in their page title. Why isn't that worse than an ad that doesn't even mention Interflora?

BTW, if I were Interflora, I wouldn't be going out of my way to annoy Google.

I did a backlink check on their site and here's one of the pages they're getting SEO links from:

http://www.blogstorm.co.uk/the-open-championship-iphone-app-desktop-widget/

Can you see the links going to Interflora?

No?

Well, the search engines can.

Leaving aside the discord of a company moralising about search engine advertising while simultaneously benefiting from black-hat SEO spam techniques... this gives Google a cast-iron excuse to penalise their site any time they think Interflora are causing them problems.

Steve

 

[Sproston]

www.flowersbypost.com

Although, according to the website, this is the 'online presence' of B. J. Le Tourneur Limited, it's fair to assume that most people who use this services for flowers will know the company as flowersbypost.com rather than B. J. Le Tourneur Limited.

Yet, interflora appear on the sponsored links when 'flowers by post' is googled.

www.arenaflowers.co.uk

Again, they are officially 'Arena Online Ltd', though no doubt about the fact their branding is clearly geared towards 'Arena Flowers'. Once more, when this is googled, interflora are seen on the sponsored links.

Seranata Flowers? Interflora have an ad for that search. Angel Flowers? Check.

I'm sure I could find plenty more if I had the time.

The point I'm making is that, regardless of whether this practise is deemed as acceptable, commendable, legal, illegal, whatever - it is extremely hypocritical for Interflora to be attacking M&S when they apparently apply a very similar strategy.

 

Including the organics?

I see #2 for the keywords "Interflora" is a voucher site that has the brand name in their page title. Why isn't that worse than an ad that doesn't even mention Interflora?

They are an affiliate of interflora so permission granted.

Earl

 

[David Warrilow]

The main question seems to be whether or not someone would think that Interflora and M&S are economically linked.

The ECJ has already decided that use of a trademark as a keyword (even if the trademark doesn't appear in the advert) can be trademark infringement; e.g. Bergspechte case. For there to be an infringement there has to be an adverse effect on the trademark's function of indicating origin.

As mentioned above, it is up to the national courts to interpret the ECJ guidance.

If someone were to think M&S was economically linked to interflora (for example an affiliate) then this may be held to be an infringement.

Stve G - I understand why you don't like my previous analogy; as I said it is not a direct analogy.

Perhaps a better analogy would be the use of metatags. Invisible to internet users they can be used to bring up a website in an organic search. If M&S were to use 'interflora' as a metatag it is very likely that this would be held an infringement.

I think the main case on this is Reed v Reed. In that case the claimant failed but only because they couldn't show a likelihood of confusion (this is required as the defendant had been using a similar mark not an identical mark). Use of an identical mark does not require a likelihood of confusion to be an infringement, and in his judgement Justice Jacob indicated that had the marks been identical the claimant probably would have won.

I think metatags are a better analogy - adwords are essentially outsourced metatags.

I accept there are arguments either way, but I still think there is a very good chance of Interflora winning this.

 

Perhaps a better analogy would be the use of metatags. Invisible to internet users they can be used to bring up a website in an organic search. If M&S were to use 'interflora' as a metatag it is very likely that this would be held an infringement.

So if I use BMW,Ford,Audi in my meta tags the same would apply.?:|

Earl

 

[harryboon]

An interesting statement to make!

Perhaps a better analogy would be the use of metatags. Invisible to internet users they can be used to bring up a website in an organic search. If M&S were to use 'interflora' as a metatag it is very likely that this would be held an infringement.

 

[directmarketingadvice]

So if I use BMW,Ford,Audi in my meta tags the same would apply.?:|

I'd imagine that's different because those are manufacturers and sell through other companies, while Interflora are selling B2C.

i.e. Companies other than BMW can sell BMWs, but companies other than Interflora can't sell Interflora.

Steve

 

[directmarketingadvice]

The main question seems to be whether or not someone would think that Interflora and M&S are economically linked.

That would seem a fair question and I think the answer would be "no".

Perhaps a better analogy would be the use of metatags. Invisible to internet users they can be used to bring up a website in an organic search. If M&S were to use 'interflora' as a metatag it is very likely that this would be held an infringement.

Leaving asiede questions of whether metatags would have that effect on search engine rankings, I might agree with this point. But that would be because someone would have had to use the trademarked term in the code
for their page.

It depends on where the lines are drawn on "fair usage".

I can write in a blog post that I bought flowers from iterflora and run an M&S ad on that page. If my post ranked highly in Google for the word "interflora", then what?

Would I have broken the law? Would M&S?

It seems to me that Interflora want the rules drawn in a way that's pretty arbitrary and - as Sproston pointed out - in a way that they themselves don't respect.

Steve

 

I'd imagine that's different because those are manufacturers and sell through other companies, while Interflora are selling B2C.

i.e. Companies other than BMW can sell BMWs, but companies other than Interflora can't sell Interflora.

Steve

Ok got that.

But I see no reason why I can not use "interflora" in a meta tag on one of my sites that has a list of local shops including ones that may be deemed to be in competition with interflora.?

Earl

 

[directmarketingadvice]

But I see no reason why I can not use "interflora" in a meta tag on one of my sites that has a list of local shops including ones that may be deemed to be in competition with interflora.?

Fair point. And, based on my understanding of SEO, wouldn't having it in your meta keywords count far less than if you had it in your body text?

Maybe the argument is that usage on the page has to have a justification within that text, while just having it in the meta keywords doesn't?

(I wonder what Interflora would think about a site having it in hidden text? - lol)

As I said, I think what's "right and wrong" here seems to be pretty abitrary, especially if you look at sites in the organics.

Steve

 

[RedEvo]

Orgainic listings - e.g. google is showing them at #1 for "flower delivery".

They're not paying Google for that, yet I bet it's making them a load of money.

Steve

I thought that's what you meant.... The investment they made in their website provides Google with the very thing that Google uses to make its money, surely it's symbiotic? Nobody is doing anyone a favour.

d

 

[David Warrilow]

Leaving asiede questions of whether metatags would have that effect on search engine rankings, I might agree with this point. But that would be because someone would have had to use the trademarked term in the code
for their page.

Steve

Hi Steve

I don't think whether it is in the code on their website or in the code on another website is relevant. They're still using a competitor's registered trademark to advertise their own products and services.

Under the metatag analogy interflora should succeed.

Also, I don't think we've considered section 10(3) infringement. I think everyone would agree that Interflora have a reputation for the relevant goods/services in the UK.

Under s. 10(3):

A person infringes a registered trade mark if he uses in the course of trade a sign which-

(a)is identical with or similar to the trade mark, and

(b)is used in relation to goods or services which are not similar to those for which the trade mark is registered,

where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.

There is a good argument that the M&S use takes unfair advantage of the Interflora name and directs people to the M&S website where they might buy a range of goods/services similar or dissimilar.

Also it can be argued that it is detrimental to the distinctive character of the mark as that is effectively being 'diluted' by the M&S use of it.

More grounds for Interflora to succeed on.

I guess what I am trying to convey is that to dismiss Interflora's action as ridiculous and the company merely throwing its weight around is unjust. They do seem to have some good grounds to claim infringement on.

Whether you agree with the law or not is a different matter...

Cheers

David

 

[directmarketingadvice]

Under s. 10(3):

A person infringes a registered trade mark if he uses in the course of trade a sign which—

(a)is identical with or similar to the trade mark, and

(b)is used in relation to goods or services which are not similar to those for which the trade mark is registered,

where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.

There are so many questions relating to this.

Firstly, are M&S using it? No.

Are they taking "unfair advantage"? Maybe.

But here's an analogy that should answer that:

Site A is a blog that makes money by bringing in organic search traffic for a variety of traffic and from running ads on their pages. They write a post about interflora and that page has an ad for 1-800 flowers. They get visitors from searches relating to Interflora. Is this illegal?

Site B is a business review site that runs ads on their pages. Someone adds a (positive) review of Interflora to their site and, on that page, there's an ad for 1-800 flowers. Is this illegal?

Site C is a search engine. On their page for the search term "Interflora", there's an ad for 1-800 flowers. Is this illegal?

See, to me, I see 3 sites that publish content. So, for that reason, the answer should be the same in all 3 scenarios.

To argue that there's a difference because site C is a "search engine" is, to me, a nonsense. They're all publishers. End of story.

Interflora's argument seems to revolve around google being some sort of special case because it's so popular. I'd be surprised that, if this went to court, they could come up with a sensible argument for that.

Of course, the inability to present a sensible case doesn't mean they can't win.

Steve

 

[directmarketingadvice]

Also, google's page for the term "interflora" isn't a page about the company called Interflora.

It's a page about things that relate to interflora. Or, to put it another way, a page that's intended to be relevant to someone searching on the word "interflora".

And, unsurprisingly, flower companies fit that bill.

Steve

 

[David Warrilow]

There are so many questions relating to this.

Firstly, are M&S using it? No.

Are they taking "unfair advantage"? Maybe.

.....

Interflora's argument seems to revolve around google being some sort of special case because it's so popular.

Sorry Steve, this is wrong. In the Bergspechte case it was held that buying someone else's trademark to generate a PPC advert is use in the course of trade.

The only question is whether or not the M&S use takes unfair advantage or is detrimental to the distinctive character.

In terms of trademark law PPC is a very new thing and the law has to catch up with it.

I don't think Interflora wants Google to be a 'special case'. On the contrary, I think they want to bring it in line with trademark law outside of the internet.

You generally can't use competitors' trademarks to advertise your goods/services in other situations; why should PPC be any different?

PPC on Google differs from other examples you cite differ as PPC is done deliberately where as all of the situations in the examples can happen unintentionally.

Arguing against this being an infringement seems to be to want to make PPC a special case in the sense that it would be exempt from trademark law.

 

[directmarketingadvice]

I don't think Interflora wants Google to be a 'special case'.

So they're going after everyone that mentions them on a page that has other advertising? No, of course not, they want google to be a special case.

Let's call it what it is: it's them wanting a monopoly on SERPS that have their brand name.

But why should a company be able to control a page on a site belonging to someone else?

You generally can't use competitors' trademarks to advertise your goods/services in other situations; why should PPC be any different?

But M&S aren't using Interflora's trademark in their advertising. They're merely advertising on a page that's deemed by Google to be relevant to someone searching on Google for that word.

It's a world of a difference.

A better analogy would be M&S running an ad on a newspaper page that has a story about Interflora.

But, of course, when you make that analogy, the whole case becomes laughable.

PPC on Google differs from other examples you cite differ as PPC is done deliberately where as all of the situations in the examples can happen unintentionally.

Not by the site owner.

Arguing against this being an infringement seems to be to want to make PPC a special case in the sense that it would be exempt from trademark law.

You're placing me on the wrong side of this argument. I'm saying that search engines should be treated the same way as any other internet publisher.

It's people like you who seem to want to make them a special case.

If the law decides that you can't mention a trademarked company on a page that contains advertising, then fine.

But that's not what Interflora want... because they know it would cost them far more than they gain. They can forget about online PR, affiliates, SEO, PPC etc.

All those doors would be shut.

Interflora want to have their cake and eat it. That's what this court case is about.

Steve

 

[Deleted member 59730]

But M&S aren't using Interflora's trademark in their advertising. They're merely advertising on a page that's deemed by Google to be relevant to someone searching on Google for that word.

It's a world of a difference.

A better analogy would be M&S running an ad on a newspaper page that has a story about Interflora.

But, of course, when you make that analogy, the whole case becomes laughable.
Steve

The case is about M&S paying Google to place M&S in the same top highlighted area of a page when anyone types in the word 'Interflora'. If that isn't using Interflora's name in M&S advertising I don't know what is.

If Interflora lose this case it opens up the opportunity for every cowboy, counterfeiter, scammer and crook to destroy all legitimate businesses.

 

[directmarketingadvice]

If Interflora lose this case it opens up the opportunity for every cowboy, counterfeiter, scammer and crook to destroy all legitimate businesses.

How does it do that? Really, be specific, how would Interflora losing this case allow "cowboys", "counterfeiters" and "scammers" to "destroy" a legitimate business?

How exactly would this happen?

And, if Interflora wins this case, what happens to basic freedom of expression on the internet?

Someone asks on a forum, "know of a good flower delivery service?". Someone else replies "try Interflora" and the mods have to delete the thread because there happens to be both the word "interflora" and advertising on the same page and the forum owners don't want to be sued by Interflora.

Or course, that's not what Interflora want. What they want is for one publisher (Google) to be held to one set of rules while others aren't.

And the only reason they're suing M&S, rather than Google is that Google has already won cases about this issue. So they're pretty much bombproof.

Of course, that means that Interflora are suggesting that it's ok for a company to sell advertising on a page, but not ok for anyone to buy that advertising. Just one of the many things about this case which are utterly illogical.

But, if you disagree with me, why not take up this challenge: write out what you think the rule should be, without that rule treating search engines differently from other internet publishers.

Steve

 

[pcross]

We used to have our competitors using our trademark WhosOff in the text of their Google ads and we got Google to stop that happening... but no way to prevent those ads appearing when 'WhosOff' is the search term.

 

[directmarketingadvice]

We used to have our competitors using our trademark WhosOff in the text of their Google ads and we got Google to stop that happening

And I think it was perfectly reasonable for you to do that.

There are many trademarked terms that Adwords won't allow other advertisers to use. Most of the time, I think that's fair enough.

The times I disagree is when companies allow other companies to sell their products - like Earl's BMW example. If BMW allow you to sell BMWs, then they should, IMO, allow you to use that word in your ads for BMWs. That just seems fair to me.

(Of course, if part of the t&c of you being allowed to sell BMWs is that you can't bid on a keyword containing BMW, then that's fair enough - you need to respect your contract.)

So, M&S advertising on a search engine results page that's relevant to the word "interflora" = good thing.

M&S using "Interflora" in their ad text = bad thing.

Steve

 

How would interflora know that M&S were bidding on the term "interflora".?:|

Could they not be appearing for a synonym.?

Earl

 

[directmarketingadvice]

How would interflora know that M&S were bidding on the term "interflora".?:|

Could they not be appearing for a synonym.?

They could be. I have clients who show for competitors' names without us bidding on those names and that's because of broad match.

If it ever went to court, we could prove we weren't bidding on the names by presenting the information from our account. But without access to our account there's no way the competitor would know that.

(However, if they asked us to "cease and desist" from appearing for their terms, we could block them easily enough if we wanted to.)

Steve

 

[Deleted member 59730]

"But, if you disagree with me, why not take up this challenge: write out what you think the rule should be, without that rule treating search engines differently from other internet publishers."

The rule should be what has developed over many years in Trade Mark Law. Its very simple and I cannot see why you don't see the difference. An internet publisher is the same as a paper publisher. Publishing is subject to the law of libel. Different law, different rules. (You can publish a story about company ABC being absolute shoddy if you are reporting the facts.) You are a third party in the matter. No problems. What is happening here is that M&S are using a word which is someone elses trademark to get commercial advantage over them. The law of trademark and passing off is the only one needed.

 

[David Warrilow]

Someone asks on a forum, "know of a good flower delivery service?". Someone else replies "try Interflora" and the mods have to delete the thread because there happens to be both the word "interflora" and advertising on the same page and the forum owners don't want to be sued by Interflora.

Or course, that's not what Interflora want. What they want is for one publisher (Google) to be held to one set of rules while others aren't.

....

But, if you disagree with me, why not take up this challenge: write out what you think the rule should be, without that rule treating search engines differently from other internet publishers.

Steve

Hi Steve

You seem to be missing the point of what constitutes trademark infringement.

The use must be 'in the course of trade' and in normally in relation to identical/similar goods/services covered by the registration.

People chatting about flower providers on a forum is not use in the course of trade. Someone trying to sell flowers is.

In your analogy the forum provider is analagous to Google - as you say, the courts have essentially already decided Google isn't responsible so no one would have to start taking down posts.

It is not one set of rules for one publisher and one for another. The point is that M&S (not a publisher) has actively used adwords to plug their own goods/services by using someone else's trademark.

 

I suspect M&S legal team would be onto the ramifications of using "interflora"

Hence maybe the answer lies along these lines.

http://www.google.co.uk/search?hl=e...a&btnG=Search&aq=f&aqi=g-m3&aql=&oq=&gs_rfai=

I also don't see how they can sue M&S as google is the responsible party for allowing trade marked words to be used.

Earl

 

[deniser]

Interesting discussion, thanks everyone.

 

[directmarketingadvice]

Publishing is subject to the law of libel.

I'm surpised you think I'm suggesting websites should be allowed to libel companies. I'm not sure which of my posts you think advocates that.

The law of trademark and passing off is the only one needed.

But M&S aren't passing off. They're clearly M&S. To my knowledge, they're not using any words in their ads to suggest they're Interflora.

All they're doing is advertising on a page on the internet that's related to Interflora.

My point is that, surely every page on the internet that mentions Interflora would have to have whatever restrictions are placed on Google's page that mentions Interflora?

And, from what you're saying, you seem to think that none of those pages should be allowed to have ads for flower companies.

Is that what you're saying? Or have I misunderstood?

Steve

 

[directmarketingadvice]

People chatting about flower providers on a forum is not use in the course of trade. Someone trying to sell flowers is.

But someone advertising on a page that's chatting about Interflora is "in the course of trade". Are they not?

Therefore, the same rules that apply to M&S advertising on the keyword "interflora" should apply to the people advertising on that forum.

Unless you argue that Google search is, somehow, different to other publishers. But why would that be the case? Publishers are publishers.

In your analogy the forum provider is analagous to Google - as you say, the courts have essentially already decided Google isn't responsible so no one would have to start taking down posts.

It is not one set of rules for one publisher and one for another. The point is that M&S (not a publisher) has actively used adwords to plug their own goods/services by using someone else's trademark.

Firstly, M&S using adwords should be no different to any other advertiser using any other form of paid online advertising. Disagree? Feel free to explain why.

Secondly, one of the points I made is that the courts have decided that it's perfectly reasonable (and legal) for Google to sell advertising on their search results pages for trademarked terms.

What you seem to believe is that, while advertising can be sold legally, it should be illegal to buy it.

Surely that makes no sense?

Steve

 

[directmarketingadvice]

I also don't see how they can sue M&S as google is the responsible party for allowing trade marked words to be used.

Agree 100%. If it's legal to sell it, it should be legal to buy it.

So it would make so much more sense to sue Google... except for the fact Google have successfully fought such cases and have the weight of those verdicts to protect them.

Steve

 

[Deleted member 59730]

Dear Steve

I think you are confusing things. We are not talking about 'pages' here. We are talking about that pale pink highlighted bit at the top of the page. You only get that highlighted bit by buying the word. The case is not about M&S using the word 'flowers'. Its about them paying Google to get into that pink bit by using the word 'Interflora'. ASDA are also doing it and might also be sued.