European Court ruling could impact advertisers
A ruling in a dispute between Interflora and Marks & Spencer by the European Court of Justice (ECJ) could now mean that the practice of using competitor’s trademarks as search engine keywords could breach trademark law.
The ECJ ruled that companies buying trademarked keywords to be used on search engines to advertise rival services could be in breach of European Law. In relation to the case brought against Marks and Spencer by Interflora, Marks and Spencer were found to be using the word ‘Interflora’ as a Google AdWord, which meant that anyone searching for Interflora on Google were served with ads for the Marks and Spencer flower delivery service.
This decision by the ECJ could now mean that companies have the right to expect their trademark to be protected from being used by their competitors. Suggesting that companies buying their rivals trademarked keywords on AdWords will now be in breach of European law.
The ECJ stated: “(European law) must be interpreted as meaning that the proprietor of a trademark with a reputation is entitled to prevent a competitor from advertising on the basis of a keyword corresponding to that trademark. Advertising on the basis of such a keyword is detrimental to the distinctive character of a trademark with a reputation (dilution) if, for example, it contributes to turning that trademark into a generic term.”
Although the statement from ECJ is not the final ruling on the subject, it is likely to influence the decision at the High Court between Interflora and Marks and Spencer as well as any other future cases.
This ruling could be great news for many businesses, however could provide problems across the industry, with companies looking for new ways to increase advertising across the web. It now means that many will be cautious with the keywords they choose to use for advertising.
Steve 603 days ago
http://www.bronco.co.ukAh, I thought that had already happened a couple of years back… or maybe that was when the court case started.
Steve 603 days ago
http://www.bronco.co.ukIt was this I think, I remember it being something about France anyway: http://www.linksandlaw.com/adwords-google-keyword-lawsuit-France.htm
Iain Forrest 603 days ago
http://www.wynyard.comI confess to not having read the ruling myself but http://econsultancy.com/blog/8040-brand-bidding-on-adwords-is-ok-rules-eu-in-interflora-vs-m-s-case interprets this in pretty much the opposite way to you, saying INTERFLORA cannot stop M&S from bidding on the term ‘Interflora’.
So, which is it? On reading the excerpts from the judgement in the E Consultancy piece I see no issue in M&S continuing to use Interflora as a keyword, although it would be dangerous to use it in an ad, thus nothing much would seem to have changed.
Is this then an example of a legal judgement that’s sufficiently unclear that it can be interpreted either way?
Iain Forrest 603 days ago
http://www.wynyard.comPS I guess M&S don’t see much of a problem with the ruling as their ad triggered by “interflora” is still there …
David Whitehouse 603 days ago
Interesting post – I guess that means generic brand names are going to become less popular.
Lee 599 days ago
Interfloras own SEO company seem to be singing about it being a victory for them and other blogs just seem to be taking that (biased) opinion as fact….
Reading over it I’d say its the opposite. Brand bidding is definitely not dead. In most instances its going to be allowed.
Iain Forrest 599 days ago
http://www.wynyard.comLee – it looks that way to me too. M&S ads still appear when searching for Interflora, so they’re obviously still not too worried almost a week on from the ruling.
Steve 599 days ago
http://www.bronco.co.ukI think people may have missed the point of the blog post. What’s being said (from what I can see) is that the case isn’t over, and that it could rule either way. So there’s a possibility that the european court ruling “could” affect advertisers (as the title states)… it’s just that we don’t know yet, and it’s certainly no victory for Interfloras or anybodies elses team until the final ruling.
Lee 598 days ago
Yes, and I “could” get hit by a bus when I go for my lunch
With lines like this: (in Blogstorms post, not yours)
“The Court of Justice of the EU has today ruled in favour of Interflora in the brand bidding case against Marks & Spencers.”
And titled “the end to brand bidding?”…. you’d think they actually won something worth talking about here. And it really does look like the opposite to me.
I’ll be very surprised if M&S actually end up forced to stop brand bidding in this particular case, and as for the wider implications, I don’t think there really is any – its business as normal if brand bidding is your thing
John 590 days ago
Interflora has United Online behind them and United Online is facing multiple federal charges relating to credit card fraud and unsavory practices (refusing refunds, refusing to stop charging credit cards while making it impossible to remove them, etc) with their web properties MyPoints, Classmates and the whole NetZero and Juno brands.
In other words – deal with United Online and you deal with shady practices, not surprised they are in court for using other companies brands to push their own.