The time-honored practice of a retailer buying a competitor's Google AdWord to try to pull in online traffic got undercut in the U.K. on Tuesday (May 21), when a court ruled against Marks & Spencer and in favor of florist service Interflora. The High Court of England and Wales ruled in the 5-year-old case that the retail chain had infringed on the Interflora trademark.
On Tuesday, the High Court of England and Wales handed down its judgment in the long-running case of Interflora Inc. and Interflora British Unit versus Marks & Spencer plc. Mr Justice Arnold ruled in favor of Interflora Inc. and Interflora British Unit, finding that Marks & Spencer's use of the "Interflora" trademark as a Google AdWord to advertise its M&S Flowers & Gifts website was trademark infringement.
In effect, the court ruled that most shoppers don't know about how online ad programs work—and/or are not paying sufficient attention to see where they are going—and they can therefore be tricked. Marks & Spencer's ad campaign "did not enable reasonably well-informed and reasonably attentive internet users to ascertain whether the service referred to in the advertisements originated from M&S or Interflora. On the contrary, as at 6 May 2008, a significant proportion of the consumers who searched for 'interflora' then clicked on M&S 's advertisements displayed in response to those searches, were led to believe, incorrectly, that M&S 's flower delivery service was part of the Interflora network," the court ruled.
In this Marks & Spencer case, users were clicking on a florist network and then landed on a florist site. As far as those shoppers knew, M&S's floral unit could easily have been part of the Interflora network (it wasn't). Legally, the typical practice in the U.S. is of a different nature. It might be one retailer grabbing the keyword for the name of a direct competitor. The duping that the U.K. court objected to wouldn't be an issue with that approach, since a shopper who clicks on an ad for, let's say, Target and then winds up on Walmart's site knows exactly what happened.
That customer may not have intended to go to Walmart, but there's no trickery involved once they arrive. And if the tactic is used properly, if someone is looking for "jeans and Target," the page will dump them right into the jeans area of Walmart. In short, it's not certain that anything outside of the very narrow—and very tricky—Interflora case would deliver a decision against the chain.