Back in 2008, Google relaxed previous rules and announced that companies using Adwords could bid on competitor keywords. For example, M&S could bid on Interflora searches. And they did!
Many companies – Interflora included – weren’t very happy about this and decided to take legal action.
The Interflora case went before the UK and European courts and, yesterday, the EU ruled in its favour. The full ruling can be read here.
However, to say competition law is complex is a massive understatement and the ruling, which still has to be interpreted by British courts, doesn’t give Interflora every concession it might initially have wanted.
In simplistic terms, M&S is still allowed to bid on trademarked keywords as long as the advert doesn’t damage the reputation of the rival brand.
Most people would probably conclude that this is fair and M&S would likely follow this best practice advice in any case. So it seems as though everyone concerned here is claiming a (albeit small) victory!
Do a search for Interflora and see who (still) comes up…!
The ruling dictates that trademarked brands retain the right to protect their reputation. It’s a tricky one to define though. And the web is full of examples of brands that are looking to protect themselves. For example, take Louis Vuitton’s court case last year, the roll out of XXX domain names later this year and Qwikster’s recent Twitter problems.
In the 90s, protecting domain names was all the rage, but these days it’s more about search and social.
Online reputation management is increasingly important for companies where competitors can openly advertise on branded searches. The fact that Interflora took this action suggests they are losing considerable revenue because of trademark bidding.
What does this mean for brands?
Of course, what is really interesting is what this means for other companies out there. Here are my top pieces of advice, many of which haven’t changed following the ruling:
– Bid on your trademarks – if you have a trademark, you need to make sure you register it with Google and then potentially bid on it
– If you feel someone is using your trademark incorrectly then you can challenge this
– If you are bidding on a trademark, don’t infringe the copyright of the brand you are bidding against (and correspond to ASA rules)
– Don’t criticise the brand you are bidding against
– Make it clear about your relationship to the brand – don’t try and deceive searchers
But, at the end of the day, this ruling doesn’t change the fact that you can still bid on any term out there and many, M&S included, will.
There is plenty of information out there about trademark bidding. I’ve included some useful links below and, of course, get in touch if you want to know more.