I've had a few clients ask me this week about what we expect to happen with the Interflora vs Marks & Spencer and Flowers Direct law suit which has been brought about because of Google's change in their trademark law.
If you're not aware of this story, there is a good right up at the Register which can be found here.
The gist is that Interflora are crying foul that both Marks & Spencer and online retailer Flowers Direct are bidding on the keyword 'interflora' with Google PPC adverts, and are planning on taking them to court to get them to stop.
First of all it’s worth noting that this is the most high profile case since Google changed its rules on the 5th May; when they announced it there were lots of rumbles about brands going to court but this is the first time it might actually happen. It’s also unique in that what we’ve seen in the past is brands suing Google for allowing this to happen, in this case Interflora are suing M&S for actually bidding on their brand name.
My own personal opinion (and not of my employers) is that I doubt Interflora will stand much of a chance if does go to court. Google had to work very hard with its own legal team to get the move through earlier in the year, and they wouldn’t have been able to do it if they thought they’d be at the centre of a flurry of law suits. In fact, it’s been going on in the USA for years and there have been a few instances of advertisers attempting to sue Google and they rarely ever get a result.
It's also important to say that Interflora has done extremely well in the past on the back of others people's brands, with Tesco Flowers being the obvious one that springs to mind. I remember that in Valentines Day 2006 Hitwise reported that Interflora gained almost 30% of traffic on the term “Tesco Flowers”, so they are no strangers to doing well on the back of others. They managed to get round this last time because Google's broadmatch allowed them to bid on "Flowers" which would trigger an ad if someone searched "Tesco Flowers".
Tesco had to deal with it by optimising their PPC creative and maximising their SEO real estate on the page to ensure they lost as few people as possible on the search results page, but invariably all brands must prepare for some leakage (even on brand terms).
Final thought, the Monopolies Commission came out shortly after the announcement from Google and said that it would be illegal for brands to set up "Gentlemen's Agreements" about not bidding on each other's brand... I think this shows there is no such agreement in place between these 3 competitors!
If you have any thoughts on this I'd be happy to hear them!
- Finlay
Wednesday, 17 December 2008
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1 comments:
I personally can’t believe it’s taken this long for the subject of online copyright – on any intellectual property, trademarks or other – to come to the forefront.
I remember when I first started uni only 4 years ago, the music industry (I did Music Industry Management) still hadn’t really gotten to grips with downloading and digital rights management, when in reality, advanced net users had been illegally downloading music for at least 5 years without them noticing!
It irritates me that it takes a big company lodging a complaint for the government to get their act in gear and look at their prehistoric copyright laws. And it irritates me even more that once they realise there’s a problem, they decide to storm in all guns blazing, taking people to court and issuing fines willy nilly, without actually providing people with a viable alternative!
I can see that competitors may be infringing by using the word ‘Interflora’ exactly (surely its no different from M&S sticking Interflora stickers on their flowers without permission and passing them off as that brand?) but I’m not sure they should be prevented from bidding on misspellings...that’s crazy talk!
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