Friday, 5 December 2008

Keywords v Trade Marks -- let the battle commence.....

Given the growth of the online channel, all fashion retailers have been forced to learn all about SEO (search engine optimisation). One way to drive traffic to your website is through the purchase of keywords using Google's Adwords programme. In May this year Google changed its policy to allow advertisers to buy their competitor's trade marks as keywords. Yesterday Interflora issued proceedings against Marks & Spencers and Flowers Direct Online over their purchase of the "Interflora" mark (and various misspellings of the mark) as Google keywords.

Although brand-owners complain that competitors are trading off their goodwill and reputation by buying their trade marks as Google keywords, others argue that Google is promoting competition and consumers are not confused - they know the difference between a natural search result and a sponsored link. While that may be the case, Fashionista sees keywords as virtual signposts, and can't imagine the Courts allowing M&S to put an Interflora sign in their shop window, so why should the rules be different online?

Brands including Louis Vuitton have taken action against Google in France for selling keywords that were identical to their trade marks. While, in most of these cases, Google lost the first round, it has appealed the French decisions and three references to the European Court of Justice are currently pending. These references give M&S and Flowers Direct the basis to request a stay of Interflora's claim until the ECJ delivers its ruling.

While we are unlikely to get clear guidance from the Courts on this issue in the near future, now that Interflora has decided to take legal action, businesses may think twice before bidding on a competitor's trade mark as a Google keyword.