A quick history
In 2008 Google announced they were going to stop policing brand bidding within Google Adwords. This saw a mixed reaction amongst retailers.
Some retailers saw this as an additional promotional opportunity and immediately started to build PPC campaigns around their competitors’ brand names.
Other retailers thought it was unethical and took a stance to refrain from such types of PPC bidding and requested their competitors do the same.
Prior to the Interflora vs Marks and Spencer case, previous brand bidding court cases found in favour of Google. However, they were just that, in favour of Google, NOT people advertising on Google. Therefore, Google could not be sued if one of their advertisers was bidding on a brand name or trademark. However, the advertiser could, which brings us on to…
Interflora vs Marks and Spencer
In Autumn 2010, Interflora sued Marks and Spencer for bidding on the Interflora brand name in Google Adwords. In a slight move away from previous court cases of this kind, Interflora chose not to sue Google for selling the trademark protected keywords but to sue Marks and Spencer for buying them.
Many companies watched with interest to see what the outcome would be and how it could impact their own trademarks and PPC activity.
Last month, the European Court of Justice ruled in favour of Interflora recommending that brands should be found liable if they are found to be bidding on competitor terms.
What does this mean for the Trademark holder?
Very little as yet…
The Google trademark policies haven’t changed (yet). They still do not proactively police brand bidding but will follow up any complaints raised by trademark owners.
Although the Interflora vs Marks and Spencer case does give some power back to the trademark owner, it is worth them bearing in mind that although they may be entitled to take legal action regarding brand bidding, this can be a long and expensive process. With this case as backing, contacting the brand bidder in question and starting a dialogue regarding any issues is a much better place to start than at the lawyers office. It may also result in a quick and painless resolution.
What does this mean for the Google Adwords brand bidder?
Although the Google trademark policies haven’t changed as yet, Google may well relook at it’s brand bidding policy due to pressure from the European Court of Justice.
However, just because Google haven’t changed their policies yet, that doesn’t mean you shouldn’t review yours.
We know that bidding on competitors’ brands and trademarks can prove very profitable. However, if you’re carrying out such activity, the Interflora vs Marks and Spencer case has set a precedent so make sure you’re fully aware of the possible consequences of such a campaign.
In summary…
This case shows how important a company considers its brand and how far they are willing to go to preserve it. It also shows that if you don’t play your ecommerce cards straight, you may get burned.
It also shows how dramatically the rules of emarketing can change from one month to the next. In order to keep on top in the online world you need to be proactive, reactive and creative with how you promote your brand online.
Resources:
If you have an issue regarding your trademark, Google have an online trademark complaints form.
