Interflora sues Marks & Spencer over Google ad links

Why do you think this? I can't see any reason why it would affect them.

because they may well be using the word "interflora"

Earl

 

[Sproston]

Not bad a for thread this big to have just one hijack lol

hmm, I'm not sure harry. I reckon discussing Google's tax status is pretty close to a right ol' hijacking!

 

[David Warrilow]

because they may well be using the word "interflora"

Earl

Using in what way?? Many types of use by other websites are already an infringement.

The Interflora case only relates to PPC, not use of the mark Interflora in website text.

 

Using in what way?? Many types of use by other websites are already an infringement.

The Interflora case only relates to PPC, not use of the mark Interflora in website text.

same principle me thinks using someone else's trade mark to gain sales e.t.c.

Companies will be paying to get a good ranking for "interflora"

Earl

 

[David Warrilow]

same principle me thinks using someone else's trade mark to gain sales e.t.c.

Companies will be paying to get a good ranking for "interflora"

Earl

Currently if someone uses that text to link to a site it will be an infringement, if they use it in metatags it will be an infringement and if they use it elsewhere on their website it should be an infringement (unless used descriptively).

If there are other techniques to rank for Interflora then these may or may not be affected by the Inetrflora case, but it seems unlikely they would unless they are essentially PPC.

 

Currently if someone uses that text to link to a site it will be an infringement, if they use it in metatags it will be an infringement and if they use it elsewhere on their website it should be an infringement (unless used descriptively).

If there are other techniques to rank for Interflora then these may or may not be affected by the Inetrflora case, but it seems unlikely they would unless they are essentially PPC.

why are you seperating PPC from organics.?:|

Both pay a third party in order to gain an advantage from the use of the "interflora" trademark in most cases and all other companies.


Hence why interflora will probably loose the case.Can you imagine the work involved in protecting there trade mark.

Earl

 

[David Warrilow]

why are you seperating PPC from organics.?:|

Both pay a third party in order to gain an advantage from the use of the "interflora" trademark in most cases and all other companies.

Earl

I don't know why you are associating the two.

I must be ignorant, but please explain to me what exactly someone would do to increase a website in the organic listings by using the word 'interflora'. Do they put the word on the website itself, use it as anchor text for links?

Pls explain.

 

I don't know why you are associating the two.

I must be ignorant, but please explain to me what exactly someone would do to increase a website in the organic listings by using the word 'interflora'. Do they put the word on the website itself, use it as anchor text for links?

Pls explain.

All of those things and a bit more.

seems there are nearly 3 million sites using the word "interflora" on google alone

http://www.google.co.uk/search?hl=e...a"&btnG=Search&aq=f&aqi=g10&aql=&oq=&gs_rfai=

Earl

 

[David Warrilow]

All of those things and a bit more.

seems there are nearly 3 million sites using the word "interflora" on google alone

http://www.google.co.uk/search?hl=e...a"&btnG=Search&aq=f&aqi=g10&aql=&oq=&gs_rfai=

Earl

The Interflora case (presuming they win) won't change whether or not the following are an infringement (I'm pretty sure they are already, particularly after the Reed case):

1. Using a competitor's trademark as anchor text to link to your site.
2. Using a competitor's trademark as a metatag.

If you can the 'bit more' I'll let you knwo what I think.

Incidentally, I doubt the 3 million references to Interflora are all there for SEO purposes.

 

Incidentally, I doubt the 3 million references to Interflora are all there for SEO purposes.

I doubt it also ,but good luck to whoever is going to police it.

"The more" is currently priced at around the 10 million mark.

Earl

 

[directmarketingadvice]

because they may well be using the word "interflora"

Earl

"May well be"? "Must be", I'd say. (Either on page or in their linking.)

Steve

 

[David Warrilow]

"May well be"? "Must be", I'd say. (Either on page or in their linking.)

Steve

If they are then this would almost certainly currently be a trademark infringement so the Interflora case won't change anything.

 

[cmcp]

If they are then this would almost certainly currently be a trademark infringement so the Interflora case won't change anything.

Interflora

 

[David Warrilow]

Interflora

But we're not using it in the course of trade...a competitor of Interflora would be.

 

[Clodbuster]

Been away for a while and this thread took some catching up.

My opinion as a consumer who has purchased flowers.

If I Google "Interflora" I am looking for companies that supply flowers allied to Interflora. M&S looks to me as a company supplying flowers on behalf of Interflora even if they don't claim it - I may click on it.

If I Google "Flowers" then any company will do.

"Interflora Flowers" is not specific enough and can it be proven that M&S have used that specific keyphrase whereas they would have had to input the keyword "Interflora" for it to show? A broad match for "Flowers" would show their ad - and quite fine too.

I know I got pi**ed off when my oppo did it to me, I mean it is a pretty unique name - I retaliated and after about a month we both stopped. SO, in my opinion M&S are pulling a fast one and should not be allowed to use the keyword "Interflora"

 

[directmarketingadvice]

But we're not using it in the course of trade...a competitor of Interflora would be.

But you said someone having it on their page (or having it in a link to their page) "would almost certainly currently be a trademark infringement".

Cmcp just put it on a page.

Now you seem to be changing your story.

Maybe what you're now saying is that "there's no clear rule and every page has to be looked at by us lawyers - at great expense to the site owners and great profit for the lawyers ker-ching!"?

I'm sure I'm mis-representing you. But you must be aware that, whenever you've suggested where the lines have been drawn, someone has come up with a "what about..." that you've not been able to properly reply to.

Whatever the rule is, it has to be clear and consistent - and, therefore, allow non-lawyers to understand where the lines are drawn.

Otherwise, it stinks.

Steve

 

[UKSBD]

If I Google "Interflora" I am looking for companies that supply flowers allied to Interflora. M&S looks to me as a company supplying flowers on behalf of Interflora even if they don't claim it - I may click on it.

That is exactly how I would have thought.
I would have assumed M & S were selling Interfora in the same way as Tesco do.
https://direct.tesco.com/flowers/

 

[Sproston]

if I googled interflora and saw the M&S advert, I wouldn't assume M&S are allied with interflora in any way because the advert says nothing to that effect.

However, even if I did think that, I'd click on M&S's ad and it would soon become clear that they are not allied with interflora. So if I was specifically searching for interflora and M&S could not provide me with Interflora - the only loser are M&S because they've just paid for my irrelevant click.

 

[directmarketingadvice]

if I googled interflora and saw the M&S advert, I wouldn't assume M&S are allied with interflora in any way because the advert says nothing to that effect.

Me, neither.

(BTW, for those interested, I posted one of M&S flower ads earlier in this thread.)

However, even if I did think that, I'd click on M&S's ad and it would soon become clear that they are not allied with interflora. So if I was specifically searching for interflora and M&S could not provide me with Interflora - the only loser are M&S because they've just paid for my irrelevant click.

I'm not sure I'd agree. If someone clicked on the ad, thinking that the 2 companies were working together, then there's got to be some % chance they'd convert - even if, when they get to the site, they realise that's not the case.

In which case, I think there's an element of "passing off" in the ad (even if it's utterly unintentional) and that Interflora could then justifiably argue an unfair loss of earnings.

And, if they can argue that, then I think that (finally) they have some moral basis for their legal action.

It really depends on whether people have the ability to recognise that there's no link between M&S and Interflora.

Maybe I've over-estimated people's ability to realise this?

Steve

 

[Sproston]

If someone clicked on the ad, thinking that the 2 companies were working together, then there's got to be some % chance they'd convert - even if, when they get to the site, they realise that's not the case.

In which case, I think there's an element of "passing off" in the ad (even if it's utterly unintentional) and that Interflora could then justifiably argue an unfair loss of earnings.

That's a decent point, but to apply the same logic to another situation:

If an end user (who has no idea how adwords works, and just knows that when they google something, relevant results are returned) uses the search query 'interflora flowers', is it not reasonable to suggest they could think everyone on that first page is in someway affiliated with interflora?

Afterall, to the 'layman' who doesnt know that a broad match keyword 'flowers' may return an ad on related searches like 'interflora flowers', this may seem like a completely reasonable conclusion to arrive at.

So, if your theory is that, to paraphrase, 'Even unintentional passing off could be used to argue unfair loss of earnings', then it could also be applied to this situation? Even the advertiser who is simply using the broad/phrase 'flowers' may be found guilty of 'passing off without intent', simply because he occasionally appears in a search query containing interflora.

PS. For what it's worth, I don't even thinking unintentional passing off has occured here. M&S have clearly branded their ad and website, and nothing on either one even suggests a link with interflora.

In my opinion, to claim that simply because a consumer is searching interflora they must assume anything they see is interflora affiliated is quite insulting to the end user. People are more intelligent and less naive than that in my opinion.

 

[directmarketingadvice]

That's a decent point, but to apply the same logic to another situation:

If an end user (who has no idea how adwords works, and just knows that when they google something, relevant results are returned) uses the search query 'interflora flowers', is it not reasonable to suggest they could think everyone on that first page is in someway affiliated with interflora?

If they think that the ads for a search on "interflora" are affiliated with interflora, then we must conclude that he'd think the same about the ads returned for a search on "interflora flowers".

Any other conclusion would be utterly illogical.

So, if your theory is that, to paraphrase, 'Even unintentional passing off could be used to argue unfair loss of earnings', then it could also be applied to this situation? Even the advertiser who is simply using the broad/phrase 'flowers' may be found guilty of 'passing off without intent', simply because he occasionally appears in a search query containing interflora.

Yes.

This is why I believe that, if the ads aren't allowed, they have to be stopped at source (i.e. Google have to stop them). Otherwise all you get is a mess where people acting entirely fairly end up being in breach of the law.

So, to me, if this "unintentional passing off" exists on a meaningful scale, then the problem is with Google (i.e. it's a characteristic of Google that leads people to believe this), not the advertisers.

And, therefore, the case should be against Google, not M&S.

Steve

 

[David Warrilow]

But you said someone having it on their page (or having it in a link to their page) "would almost certainly currently be a trademark infringement".

Cmcp just put it on a page.

Now you seem to be changing your story.

Maybe what you're now saying is that "there's no clear rule and every page has to be looked at by us lawyers - at great expense to the site owners and great profit for the lawyers ker-ching!"?

I'm sure I'm mis-representing you. But you must be aware that, whenever you've suggested where the lines have been drawn, someone has come up with a "what about..." that you've not been able to properly reply to.

Whatever the rule is, it has to be clear and consistent - and, therefore, allow non-lawyers to understand where the lines are drawn.

Otherwise, it stinks.

Steve

I've said consistently thoughout this thread that the for an infringement to happen the use of the trademark must be 'in the course of trade'.

This has been one of the big issues in respect of Google. Was Google using it in the course of trade by selling it as a keyword? The ECJ decided not. Was someone buying it as a keyword using it in the course of trade? The ECJ decided they were.

I think I've been quite clear about this throughout.

If we are using the word Interflora in a discussion we are not using it in the course of trade.

If we are using it to try to sell flowers then that is use in the course of trade.

It's a pretty simple distinction.

 

I've said consistently thoughout this thread that the for an infringement to happen the use of the trademark must be 'in the course of trade'.

This has been one of the big issues in respect of Google. was Google using it in the course of trade by selling it as a keyword. The ECJ decided not. Was someone buying it as a keyword using it in the course of trade; the ECJ decided they were.

I think I've been quite clear about this throughout.

If we are using the word Interflora in a discussion we are not using it in the course of trade.

If we are using it to try to sell flowers then that is use in the course of trade.

It's a pretty simple distinction.

Well the ECJ was wrong in its jugement,Googles trade is selling keywords.

Earl

 

[directmarketingadvice]

I think I've been quite clear about this throughout.

If we are using the word Interflora in a discussion we are not using it in the course of trade.

If we are using it to try to sell flowers then that is use in the course of trade.

It's a pretty simple distinction.

Well, in that case, you might ask yourself why so many people on this thread don't seem to think so.... especially as most of these people have a far deeper understanding of online marketing than you do.

Let me ask you a couple of questions: is it only used "in the course of trade" if it's selling flowers? What about if it's selling spanners? It's still "trade", right?

What about if it's selling flowerpots? Or vases?

Secondly, are you able to explain clearly, universally and without confusion what it means for a website to "use" a word?

If you can give clear and intelligent answers to those questions, then you can stay on your high horse. Otherwise, get the hell off it and take some responsibility for the confusion caused by your argument.

(Which, to me, seems to be all over the place with no consistency or logic.)

Steve

 

[directmarketingadvice]

Well the ECJ was wrong in its jugement,Googles trade is selling keywords.

Earl

Exactly.

And an SEO's trade is using keywords to rank for search terms.

Like you, I'm failing to see the difference in the commercial intent of someone using PPC and the commercial intent of someone using SEO.

Steve

 

[David Warrilow]

Well, in that case, you might ask yourself why so many people on this thread don't seem to think so.... especially as most of these people have a far deeper understanding of online marketing than you do.

Steve

It's not for me to decide what the law is! I'm just telling you what the ECJ decided.

If you disagree with them why don't you write them a letter.

Let me ask you a couple of questions: is it only used "in the course of trade" if it's selling flowers? What about if it's selling spanners? It's still "trade", right?

What about if it's selling flowerpots? Or vases?

Steve

Let's go back to first principles and have a look at section 10 of the Trademark Act:

(1)A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered.

(2)A person infringes a registered trade mark if he uses in the course of trade a sign where because—

(a)the sign is identical with the trade mark and is used in relation to goods or services similar to those for which the trade mark is registered, or

(b)the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered,

there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark.

So if the mark they are using is identical and they are using it inrelation to identical goods/services then it is a section 10(1) infringement.

This is being argued in the present Interflora case. (i.e. M&S are supplying flowers - thus identical goods/services).

If the mark is identical and the goods/services are similar (this is a whole complicated ares of caselaw in itself) then there is infringement if there is a likelihood of confusion.

So in your example (flowerpots or vases) we'd have to ask whether or not they are similar to flowers'. (Are the trade channels the same, do they have the same end users, are they in comeptition or complementary etc.)

In the present case if someone saw a flowerpot branded with 'Ineterflora' would they think that it came from the flower-delivery company. Probably - thus probably a likelihood of confusion.

In the present case use of Interflora in relation to flowerpots and vases is likely to be held an infringement.

Secondly, are you able to explain clearly, universally and without confusion what it means for a website to "use" a word?

Steve

This is a lot more difficult than your previous question.

I don't think it can be explained universally.

This is the question asked in some of the Google cases and it lead to the relevant national judges referring it to the ECJ.

The Google France case is of some halp where they talk about use in commercial communications.

So, I guess anything that relates to the commercial communications of the user might lead to that use being in the course of trade. For example by buying an adword, putting the word as a metatag, using it as anchor text for a link to their page, putting the word in html on one of their pages. I'm sure there are many examples.

If you can give clear and intelligent answers to those questions, then you can stay on your high horse. Otherwise, get the hell off it and take some responsibility for the confusion caused by your argument.

(Which, to me, seems to be all over the place with no consistency or logic.)

Steve

As I said, why don't you complain to the ECJ?

 

[Clodbuster]

So, if your theory is that, to paraphrase, 'Even unintentional passing off could be used to argue unfair loss of earnings', then it could also be applied to this situation? Even the advertiser who is simply using the broad/phrase 'flowers' may be found guilty of 'passing off without intent', simply because he occasionally appears in a search query containing interflora..

I don't agree as the use of the broad match "flowers" that is triggered by the searched Keyphrase "Interflora Flowers" is completely different to the deliberate use of the Keyword "Interflora" in the campaign.

 

[directmarketingadvice]

As I said, why don't you complain to the ECJ?

I don't have to. So far they've ruled the right way. It's you that wants to change it.

Steve

 

[David Warrilow]

I don't have to. So far they've ruled the right way. It's you that wants to change it.

Steve

I don't want to change anything that they've ruled.

The point being quesitoned in the Interflora case hasn't been decided on before.

If it goes in Interflora's favour it will extend the previous judgements of the ECJ, not overturn anything.

It looks like we finally agree.

 

[Sproston]

Exactly the point Clodbuster. It is totally diffferent.

But does the end user know that?

 

[Clodbuster]

Exactly the point Clodbuster. It is totally diffferent.

But does the end user know that?

Does it matter - IMHO it is the actions of the company that is at issue, Interflora cannot claim the generic term "flowers" but they can claim the specific "Interflora" By including the specific keyword "Interflora" within their Adwords campaign - as they clearly have - they are attempting to ride on the popularity, and benefit from, of the trademarked name "Interflora"

If you search for "Interflora" the result Interflora is embolden whilst if you search for "Interflora Flowers" only "flowers" is embolden in the M&S advert indicating they were not using the long tail phrase as a keyphrase but WERE using the specific as a keyword - probably a direct match. This is theft of trademark as far as I'm concerned.

The fact that it comes up in the long tail phrase cannot be held against M&S as they are not searching for the exact phrase. This then becomes an issue for Google but there is an arguement that the generic word flowers is being targeted and this word cannot be trademarked.

 

[directmarketingadvice]

If you search for "Interflora" the result Interflora is embolden whilst if you search for "Interflora Flowers" only "flowers" is embolden in the M&S advert indicating they were not using the long tail phrase as a keyphrase but WERE using the specific as a keyword - probably a direct match. This is theft of trademark as far as I'm concerned.

If that's the basis of your argument, you're clutching at straws... that aren't even straws...

Google bolds the words that match the words in the search query (and words that relate to those words such as singular/plural), not what the advertiser has in their account keywords.

Steve

 

[UKSBD]

Whether it is legal or not, I would assume most people would think it is a sharp practise and unethical.

Do Marks & Spencers want to be seen as being unethical?
I very much doubt it.

Let's face it, this was probably done by someone very low down in the chain, or even an outside agency.

I dare say, if they could do it without any legal complications and without losing face, those higher up in M & S would apologies to Interlora about this.

I wouldn't be at all surprised if they did.

 

[Clodbuster]

If that is the case - why is the whole phrase "Interflora Flowers" not embolden? I think it is because it does not match what is in the Adwords campaign. It is only picking up on the word "flowers" so that is what is bold.

 

[directmarketingadvice]

If that is the case - why is the whole phrase "Interflora Flowers" not embolden? I think it is because it does not match what is in the Adwords campaign. It is only picking up on the word "flowers" so that is what is bold.

I'm not sure what you're talking about. If I do a search on "interflora flowers", each of those words are bolded whenever it appear in an ad.

(As is the word "flower".)

Steve

 

[directmarketingadvice]

Whether it is legal or not, I would assume most people would think it is a sharp practise and unethical.

I would imagine most people don't care... about this or any other argument about advertising.

I think you're projecting.

And, if you're talking "ethics", then why should "interflora flowers" be ok to have an ad show for, but not "interflora"?

To what extent is the first search "less about interflora"?

(And what about people bidding on "airways" and showing for "British airways" searches? Why is that "ethical" and bidding on "british airways" not?)

Steve

 

[harryboon]

If that is indeed the case surely they would have stopped the ads by now, bearing in mind this story has been in the press all over the world for the last week - however the ads are still running, not only that but so are ASDA's!

Sure if they were bothered they would have removed them sharpish?

Not really the behaviour of a company worried

Let's face it, this was probably done by someone very low down in the chain, or even an outside agency.

I dare say, if they could do it without any legal complications and without losing face, those higher up in M & S would apologies to Interlora about this.

I wouldn't be at all surprised if they did.

 

[directmarketingadvice]

If that is indeed the case surely they would have stopped the ads by now, bearing in mind this story has been in the press all over the world for the last week - however the ads are still running, not only that but so are ASDA's!

Sure if they were bothered they would have removed them sharpish?

Not really the behaviour of a company worried

I've never seen the M&S ad running for a search on "interflora". Maybe it doesn't run up here.

I always see the Asda ad and now I'm seeing 2 ads I've never seen before: one by EasyFlower.co.uk and the other by JessicaGill.net.

Excellent!

Steve

 

[harryboon]

O yes ads still showing with us, plus ASDA & EasyFlower not seen the Jessica one!

But really do any of them seem bothered? Surely if they were they would have pulled the ads?

To be honest I am really looking forward to seeing what happens with this case

I've never seen the M&S ad running for a search on "interflora". Maybe it doesn't run up here.

I always see the Asda ad and now I'm seeing 2 ads I've never seen before: one by EasyFlower.co.uk and the other by JessicaGill.net.

Excellent!

Steve

 

[directmarketingadvice]

But really do any of them seem bothered? Surely if they were they would have pulled the ads?

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