Imagine, if you can, that you do want to buy me flowers. Perhaps the first place to go, as you don’t live nearby, is online. And you might think, as you look at the search engine, who do I know who sells flowers? You might well type in the name ‘Interflora’, as that’s quite likely to pop into your head. So you might then be surprised if the top link took you through - not to Interflora’s website - but to Marks & Spencer’s.
Marks & Spencer, using all the means at its disposal to compete with Interflora, bought the keyword ‘Interflora’ on Google AdWords, to push its own flower delivery service to the top of Google’s search results. Interflora thought that they had a strong case of trademark infringement against Marks & Spencer, as they felt M&S were unfairly trading on their brand. The case has been rumbling on in the courts for some three years, as interpreting existing trademark law has not been straightforward.
For example, you might think it misleading that if you’ve typed in one company’s name, you’re recommended to go and buy flowers elsewhere. Even more complicated is the notion that as Interflora is known to be a network of flower sellers, some customers might think that if they’ve been linked through, that must mean that the M&S service is an agent for Interflora’s flower delivery. That’s credible when one thinks that Debenhams, for example, is a department store that sells lots of different companies’ products.
The results of the case may surprise some people, because the conclusion has been that buying a competitor’s name in this way does not infringe trademarks, and in this particular case, the ‘reasonably well-informed and observant’ iInternet user would not be misled by the appearance of M&S, after Interflora had been typed in.
The court emphasised that the purpose of a trademark is not to protect owners against competitive practices. It also decided that even if some people incorrectly thought that M&S were acting as an agent for Interflora’s service, this still wouldn’t be enough to conclude that M&S were guilty of trademark violation. Even where trademarks have a considerable reputation, as Interflora’s does, the judgement was that M&S were not ‘free-riding’ on this reputation.
So what are the take-outs for marketers? If you’re keen to protect your trademark, it’s a useful case as it shows that pursuing a case against a company for buying your name on Google AdWords is unlikely, with this evidence, to be successful – unless the company is denigrating your name in their use of the adword (Marks & Spencer were not doing this). It also shows that the law encourages such competitive use of other companies’ names; as long as you are not deemed to be misleading customers.
At the time of writing, when you type ‘Interflora’ into Google, the top hit is indeed Interflora. The important thing to say, however, is that wherever you bought me flowers from – it’s very nice of you.