Thursday, 11 December 2008

Marks & Spencer - of all people - test the law on Google keywords

Woolworth's and Marks & Spencer are connected in my mind by virtue of the fact that both were in Lynn Street when I was a child. That was before Lynn Street was demolished, and I well remember sitting in a pub one lunchtime in my student days with an old schoolfriend while the buildings around us were flattened. Now Woolworth's is undergoing a corporate demolition, while Marks & Spencer finds itself on the wrong end of a lawsuit arising from its use of Google keywords.

Selling keywords that might be someone's registered trade mark always struck me as a strange and dangerous thing to do. In fact selling exclusive keywords to anyone is a bit dodgy. But there seems to be a tendency for the rules on intellectual property to be rewritten by Internet businesses (and others too) with little regard for the fact that the law has developed, imperfectly to be sure, over many decades.

So M&S bid for Google keywords including Interflora and Inter-Flora. So too (according to press reports - I have a cutting from the Telegraph here) did Flowers Direct Online. Interflora says this is a trade mark infringement. Marks & Spencer - who went to the House of Lords a few years ago arguing that they could copy press cuttings without paying the Newspaper Licensing Agency, remember - thinks otherwise. Perhaps the reinvention of one of the oldest names in British retailing is complete: they are at the cutting edge of intellectual property law.

Am I showing my age and conservatism by thinking that this is as egregious a form of trade mark infringement as any other? It serves to divert customers from the business they were looking for - and while it does not mislead customers into believing that they are dealing with the trade mark owner (though there must be some scope for confusion, especially with the amount of consolidation going on at the moment, and with the tendency for businesses to develop separate on-line brands), and it does so using the trade mark owner's reputation.

The monopolisation of generic or descriptive keywords is another worrying and highly anti-competitive development. If one online retailer grabs the word or words most apt to describe what it sells, it makes it harder for others to sell those goods ... But that is a story for another day.

1 comment:

James said...

I'm afraid I would have to disagree. I do not see the difference between Google allowing Marks & Spencer's advert to appear alongside what will undoubtedly be a link to the interflora website and allowing Mark's & Spencer's to buy up advertising hoardings across the country next to each interflora florist and plastering its adverts there (which would not be trademark infringement). In both cases you are paying for advertising to appear in specific locations. The fact that it is next to a popular brand undoubtedly makes the position worth more (and thus why Google charges more), but that is equally true with a physical billboard in real life.


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