The world's largest flower delivery firm has sued Marks and Spencer at the High Court in London for sponsoring the word 'Interflora' as a search engine keyword. The case could be an important test of how UK trade mark laws apply to keyword advertising. Michigan-based Interflora and its UK trading arm are seeking an unspecified …
Say it with flowers
Can't Mark's and Spark's just send 'em a bunch of tulips or something to say they're sorry?
It's thorny for two reasons, though one far moreso than the other:
1. Trademarks are granted in specific categories (McDonald’s restaurants and McDonald’s Shoe Emporium are two different kinds of business who might hold a trademark on the same thing)
2. The companies aren't actually *displaying* the trademark, the user is just searching for it. To the letter of the law, they've actually not done anything wrong (unless the ad text contains the mark in question).
Users know that sponsored links are just that, which reduces the risk of “likely confusion”, and so are likely to be aware that the sponsored links may include competitors (which could well be to the consumer's advantage, after all).
If the advertisers aren't actually claiming to _be_ the company associated with the trademark, I say let them bid.
another way to look at it
Is that Marks and Spencer are seeking to profit by the use (recognition of a user typing in) of someone else's trademark...
So If I put a physical shop front up (lots of woolworths' stores going cheap!) that had Marks And Spencer's logo over the front, people would "search" the high street (by walking down it) until they found one that looked like what they were looking for... preferably my fake one.
However, if the advert simply responded to the "interflora" keyword, but displayed "Marks and Spencers Flowers R gr8", then isn't that similar to putting your own leaflet distributors, or advert on a bus shelter outside the competition's physical store since you're not pretending to be them?
Makes me glad I never went into law... my head hurts now.
Paris because she looks how I feel...
Been done before
Isn't this like the US phone companes who grab the numbers corresponding to things like
1-800-operater to catch the people who can't spell 'operator' ?
Also reminds me of the spelling checker in the Interleaf wordprocessor that used to offer "Interleaf" as a correction for "Framemaker" in documents (or maybe that was the other way around) . Full marks to M&S for initiative.
There is no "passing off" here, M&S are not trying to dupe potential customers that they are getting Interflora flowers, or are an agent of Interflora or indeed they are anything to do with Interflora and Google make effort to highlight the sponsored link backgrounds in a different colour as well as marking the up as Sponsored Links.
Of course, it's a question of who can afford the best lawyers. In these cases, the only winners are the Lawyers.
If interflora (TM) win does this mean that google will have to then police sponsorship of trademarks and therefore the trademark holder gets them by default without having to bid?
Users want choice?
Sounds to me that when a user searches for "interflora", that should be the top result (because that's what the user *asked* for). But what about the other results on the page? Maybe the user actually wants to know what alternatives there are. In many cases, trademarks have a legal force which isn't reflected in common parlance: the average user might well say "interflora" when he means "flowers delivered", just in the same way that "google it" is an instruction to search the internet (not necessarily with google!)
@Jeremy re. Say it with flowers
"Can't Mark's and Spark's just send 'em a bunch of tulips or something to say they're sorry?"
Tulips ?? at this time of year? Think of the transport miles!
Surely Google makes the rules?
If google wants to publish a website with links to M&S, and M&S wants to pay for any combination of words that can be used to search for them, surely it's down to them. This is google's playfield, so unless Interflora want to out-bid M&S for that particular keyword in Google's search algorithm, that's tough luck to them.
After all, two guys called Spence and Markus decide to promote their new deli and sandwich shop by paying google to return their site when people type in "marks spencer sandwiches", why shouldn't they? :)
Paris: because her flower has been searched for too.
I'm very familiar with this situation, working in the online flower world and having had threatening letters from IF myself in the past (though wishing to remain anonymous here for obvious reasons). My interpretation is that, on the basis that there can be no confusion of the brands, that Interflora's case is flawed. There are other weaknesses in their argument too. Interflora have a reputation in the industry for being litigious, so I'm not surprised to see them going at it hammer and tongs.
Funny that an Interflora affiliate is currently bidding on keyword Interflora and then redirecting any purchase attempts back to the Interflora site, in breach of double serving guidelines. FTD is also the parent of Interflora and is also bidding, so feasibly also in the wrong (although seems to be more a case of poor PPC set up by a US florist than anything else). Physician, heal thyself!
So at one level, this is M&S going ambulance chasing - the customers haven't gone looking for their flowers, they're piggy-backing on customers who are explicitly looking for a competitor.
But I go along with the view that presenting your own clearly identified product offerings in response to a search for a competitor's trademark is *not* infringement. Interflora's real problem is this: there will be florists who are Interflora members who also have keyword ads, and are being pushed off the results screen by M&S having a bigger click-through ratio.
Oh. It's also worth mentioning that part of the reason none of these rules are clear is because passing off rules were written before the interent existed and were designed with supermarket shelves and such like in mind...
Google's protection racket
Interesting case. Perhaps Google are guilty of extortion. In order to make sure that Interflora comes up in the Sponsored Links before any people riding on their brand's coat-tails Interflora would have to pay Google an unspecified amount of brand "protection money". Google needs to sort this out ethically. "Do no evil" my ass.
I hope Interflora win, TBH. This is clearly an abuse of their brand name. I only wish they were suing Google, and not M&S.
A quick search in Google for "Hoover" ...
... gives a sponsored link to MorphyRichards.co.uk.
Q: When you search for "interflora" are you searching for the trademarked product, or are you looking for a generic "flower delivery service"?
Is Interflora, like Google & Hoover before it now just a generic term?
"Get the hoover on it"
"Oh just google it"
"I need to send an interflora"
@BLoad - Nice as ever to see the base IQ of El Reg readers rising steadily. How's your joined up handwriting coming along?
If the name is in common use (Vaseline got very close) for a product or service then you can lose your trademark. IMHO Interflora is not a common use for the task of flower sales and delivery. Type in Flower Sales or Flower Delivery into Google - looks like Interflora only pay them to appear in the sponsored links for delivery, not sales - M&S do for both.
Search for a particular hotel - how many times is the sponsored link for that hotel... this is a very difficult area.
No Difference Between Paid Search & Natural Search For A Brand
There is really no difference in SEO'ing for a brand or PPC'ing for a brand, So for the 1.5 million sites that appear on Google when you do a web search for the word "Interlora" how many are Interflora or any other retailer going to sue. Also ads have not necessarily disappeared overnight.
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