If you work within digital marketing and more specifically Pay Per Click marketing, you can’t have failed to have seen the press surrounding the court case between Interflora and British retailer Marks and Spencer.
In a nutshell it emerged late 2008 that Marks and Spencer had been purchasing variations of the Interflora brand keyword in an attempt to promote its own flower service. Interflora not happy with this and stating that Marks and Spencer were potentially affecting their sales, launched a lawsuit against Marks and Spencer.
This incident is very reminiscent of a similar case launched by LVMH (of Louis Vuitton fame) against Google regarding the use of their keywords to promote third party retailers. In this case – Google won this particular case sending sighs of relief through many digital marketeers minds.
Last week Interflora claimed a victory when the Court of Justice of the European Union preliminary ruled that trademark is “adversely” affected where the advertisement leads the user to believe that what they are clicking on may potentially be or affiliated with the brand they searched for.
In the office, I have been pondering over this, speaking to some of my colleagues and wondering just how Marks and Spencer can be making any sort of profit on bidding on their competitors terms. Some very interesting thoughts arose.
Marks’s – the local store
Interflora is potentially viewed as being an “international” flower delivery service and perhaps if someone wanted to buy flowers to be delivered in the UK, they might consider Marks and Spencer once seeing their ads – because the perception of Marks and Spencer is that they are “around the corner” – local.
Interflora turning into Hoover
Another view was offered that when ordering flowers to be delivered, you might not actually care what company they are ordered from. The core factors involved are speed, price and choice. The suggestion that a user might be searching for Interflora to purely find “flower sellers”. The fact that “Interflora” could potentially be used as a generic term rather than brand is certainly going to be a worry for them. How often do you refer to your vacuum cleaner as a “vacuum cleaner” rather than “hoover”? Certainly the search results for “hoover” and the results page for retailer John Lewis seem to indicate that the user isn’t looking for a particular brand.
Based on the ruling – it doesn’t appear that Marks and Spencer are doing anything wrong, as they aren’t seeking to dupe users to think they sell Interflora products. They are simply offering awareness of their own service.
Certainly their quality score must be particularly high as their ad appears in the premium bar and includes sitelinks.
We can’t help but wonder – does the effort that Interflora has gone to with their argument fully justify how a brand of their age and heritage should be protected from “free-riding on a brand”?
In this current economy is it “each to their own”?
A final judgement is still being considered by the Court of Justice and at print, not only were Marks and Spencer still advertising under the “interflora” keyword, two independent florists and ASDA could all be seen for the same keyword.
Share your thoughts with us.