European Advocate General Finds Against Trademark Bidding in Interflora Case

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The European Advocate General is recommending that the Court of Justice of the European Union rule against retailer Marks & Spencer for bidding on the trademarked terms of Interflora, the flower delivery network company.

If the Court of Justice acts on the findings, it could effectively spell the end of bidding on competitors’ trademarks in the European Union. Unlike other cases, like Luis Vuitton v Google, this case pitted the trademark owner, Interflora, directly against the advertiser bidding on the trademarked terms, rather than involving Google, or any other search engine, as an intermediary. In the Louis Vuitton case against Google, the search engine was awarded a victory last year.

Interflora is, understandably, pleased. “Together with our network of 1800 independent florists, we have spent a lot of time and money over the last 80 years building the reputation of the Interflora brand. We are known as ‘the flower experts’ and our brand stands for quality and service,” Michael Barringer, Interflora’s marketing director, said in a statement. “We are very proud of the Interflora brand and want to protect it for our customers, florists and the future.”

In the European Union, Google permits the use of trademarks as keywords, except in cases where they would be “confusing as to the origin of the advertised goods and service.” It allows other uses such as competitive keyword bidding and bidding by resellers of the goods being advertised. The Advocate General found whether the search engine allows trademark bidding or not is immaterial to the case, letting Google and other search engines off the hook.

The European Advocate General found that the trade mark owner is entitled to bar someone from using a trademark as a keyword, “in the case where that ad does not enable an average internet user, or enables the said user only with difficulty, to ascertain whether the goods or services referred to in the ad originate from the proprietor of the trademark or an undertaking economically connected to it or from a third party.” Additionally, he found that that the trademark owner has the right to bar the use of the term “when the competitor’s sponsored link is liable to lead some members of the public to believe that the competitor is a member of the trademark proprietor’s commercial network when it is not.”

The EU Court of Justice is reportedly expected to issue a ruling on the case within six months.

Thanks to Blogstorm.co.uk for the tip!