Should It Be Banned? Google AdWords, Trade Mark Infringements and EU Law

There has been a long running debate involving the use of Google Adwords to tempt prospects away from your competitors. This debate has focused on a particular test case in which Marks and Spencer have bid to appear in the search results for the word ‘Interflora’. Unsurprisingly, Interflora are unhappy with this.

What Is Adwords?

Adwords is an ad network controlled by the search giant Google. Companies are allowed to bid on certain keywords. Their bid, coupled with their online reputation dictates when and how often their advert shows up for that particular keyword.

The average search results page shows 3 paid ads which are secured through the Adwords network before the ‘organic’ results. By bidding on the keyword ‘Interflora’, Marks and Spencer would stand a considerable chance of stealing customers looking for the well known florists.

Does It Infringe Their Trademark?

The debate has been centred not on whether this practice is ethical or not, but rather whether it infringes Interflora’s trademark rights. In 2009 the English high courts ruled that they didn’t believe that Marks and Spencer had infringed the rights of Interflora. Their argument was that Marks and Spencer did not try to imitate Interflora, they simply appeared as a competitor in the same results.

Recently there have been further developments to the saga. The European Court of Justice recently ruled that by bidding on a competitor’s name as an AdWord, Marks and Spencer did ‘adversely affect’ the Interflora brand. The ruling did not, however, rule that bidding on a competitors name was completely illegitimate. The ruling is far from conclusive and a more comprehensive ruling is expected from the UK high court in 2012.

Should It Be Banned?

Search engines, of which Google is the most popular, are motivated by user experience. They always aim to return results which will help searchers find what they are looking for as quickly and effectively as possible. This includes their paid advertising channels.

By allowing companies to bid on their competitors names they are simply allowing them to appear as an alternative to the company the searcher is probably looking for. So long as these companies don’t try to imitate the company they are targeting, user experience will only be improved by letting companies bid on competitors names.

The debate is likely to continue and will, no doubt, be revised many times before a consensus is reached. Until then, watch this space.

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