At my session at SES this year I reviewed the current legal position of trademark bidding and made the confident forecast that this one will run and run.
Seemed like a safe prediction - and for once I was right!
According to Outlaw, the case between Interflora and Marks and Spencer has now been referred to the European Court of Justice for a final ruling, where it joins a bunch of actions from other European brands.
Meanwhile there were a couple of interesting things from the summing up of the High Court judge in London:
- It’s pretty strange that Google is running a different set of rules on trademark bidding in the UK and Ireland to the rest of Europe, given that ultimately we are controlled under the same set of laws. But the reason is that trademark laws are quite different here to mainland Europe. And hence any judgement in Europe may not really clear up the situation in the UK.
- Interflora has quantified the loss it has suffered from the introduction of competitive bidding. According to the High Court ruling: "Interflora's bidding costs for their keywords during the nine days leading up to Valentine's Day increased from 2p per click in 2008 to 23-28p per click in 2009. Interflora estimate that in total their costs will have increased by about $750,000 in the year from 5 May 2008."
Given that this case will definitely drag on and may not even clear up the UK situation, it’s well worth brands doing a similar calculation of the material loss they believe they may have suffered. There’s always the possibility – however slim – that the case will finally be settled, will go against Google, and that compensation will be paid.
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