Last week the High Court of England and Wales announced its ruling on the long-running dispute between Interflora, the flower delivery network, and Marks and Spencer, the booming luxury food retailer and waning mum’s-favourite-clothes-shop, which also sells flowers. To cut to the chase, Interflora won: “the M&S advertisements… did not enable reasonably well-informed and reasonably attentive internet users, or enabled them only with difficulty, to ascertain whether the service referred to in the advertisements originated from the proprietor of the trade marks… or originated from a third party.”
So what exactly did M&S do? They bid for the keyword ‘interflora’ and other variations on the brand term in AdWords, so that when a user searched for the brand on Google an M&S ad would appear alongside other results. They did not, it’s worth noting, use the word ‘Interflora’ in their ad copy; most reports suggest that the M&S ad that appeared read as follows:
M&S Flowers Online
Gorgeous Fresh Flowers & Plants,
Order by 5pm for Next-Day Delivery
The recent High Court ruling followed a European Court of Justice ruling on the case in 2011 and, to the average search marketer, will seem to run counter to it. While the 2011 ECJ ruling was interpreted by most as a tacit approval of bidding on competitors’ brands, this High Court ruling will be seen as a castigation of the practice.
The reality, as is so often the case, is more subtle. Pinsent Masons, who acted for Interflora in the case, provide a good breakdown on their out-law site, but for those of you who don’t feel compelled to wade through the legalese, the simple summary is that since Interflora is a network rather than a single vendor, there is a significant possibility for a user to think that advertisers appearing for a brand search are part of that network.
So does the case set a clear precedent on competitor-bidding in general? As with the ECJ ruling before it, the answer is no, not really: the variables of specific ad copy, business model and other factors mean that advertisers are still in terra incognita when it comes to bidding on competitor keywords. Will it have an impact on the practice of competitor-bidding? It might, as more brands become more cautious, but it doesn’t draw a clear line. This is demonstrated pretty clearly by the fact that a search for ‘interflora’ right now still brings up an M&S ad, saying, in a hardly radical departure from their earlier ad:
M&S Flowers Online
Blooming Flowers & Plants at M&S.
All Prices Include Free Delivery.
What is interesting about this case though, at least to me, is the surprising dearth of fingers pointing at Google about this now-high-court-confirmed infringement. Google’s policy says bidding on competitor’s brands is OK. Google also reviews and approves ad copy. So far, so complicit. But for the keyword ‘interflora’ itself things get more interesting. The Search Agency’s own testing has shown that running the keyword ‘flowers’ on Broad Match will map-in searches for the term ‘interflora’. That means that if my hypothetical flower company chooses to bid on the Broad Match keyword ‘flowers’ (perhaps a little ill-advisedly – there’ll be a ton of junk traffic there), there’s every chance that I might appear to users who just typed in ‘interflora’ without ever bidding on that brand name. Now what if that same hypothetical flower company is part of a hypothetical rival florists’ network and runs an ad that says:
Hypothetical Flowers
Part of a Great Local Florist
Network. Free Next Day Delivery
I’d suggest that this ad, appearing for an ‘interflora’ search, would be highly likely to confuse users into believing Hypothetical Flowers was part of the Interflora network. But the blame for this confusion would have to lie solely with Google, since it is the Broad Match algorithm’s decision that ‘interflora’ ≈ ‘flowers’ that has put the ad in place. Considering the efforts Google has gone to over the years to prevent their own brand name from becoming genericized in the English speaking world and elsewhere, this determined equivalency between the Interflora brand name and one of the most generic keywords suitable to florists seems a little rich.
Plenty of businesses have tried to take Google to court over the way AdWords works, from smaller companies like Rescuecom and American Blinds to bigger challengers like Rosetta Stone, GEICO and American Airlines. Typically these have either led to a Google win or a non-precedent-setting settlement. Perhaps this is why, in the case of Interflora vs M&S, the issue of Google’s involvement was hardly discussed. But if Interflora is feeling deep of pocket after the M&S damages are paid (the case will return to court later this year to determine these damages), it seems feasible they may see Google’s Broad Match algorithm as fertile ground for further litigation.
