M&S and Flowers Direct were accused of bidding for the words ‘Interflora’ and misspellings such as ‘Intaflora’ and ‘Inter-flora’. So when a user searched for these terms on Google, adverts for M&S and Flowers Direct appeared as sponsored links.
After much deliberating by the High Court, it refused to grant Interflora an injunction against Marks and Spencer to stop them from using the term ‘Interflora’ and misspellings. This case is now being submitted to the European Court of Justice for further examination.
But what does all this mean for businesses using Google AdWords to promote their own products or services on the back of brand names that aren’t theirs? Just because Google are telling us it’s ok to bid on somebody else’s brand name doesn’t mean a court will think the same. Up until May 2008, Google’s policy was to protect the trademarks of brand owners, but that policy has changed and it looks like any word is available for sponsorship now.
M&S vs Interflora is not an isolated case. Since Google’s policy change there’s been news of several companies who are threatening (or being threatened with) legal action. Last year a similar case involving Yahoo! allegedly infringing the rights of the ‘Mr Spicy’ trademark for Sainsbury’s went to court. The court ruled that Yahoo! had not infringed the rights of the ‘Mr Spicy’ trade mark. The court ruled that only the word “spicy” was being sponsored, as opposed to the registered mark.
So if you are thinking of bidding on registered trademark terms that aren’t your own, be very wary!
