The latest twist in the evolving dispute over the use of keywords in Europe involves a battle of advertisers.
A lawsuit has been filed by the UK-based flower delivery network, Interflora, against British retail giant Marks & Spencer for using the word "Interflora" on Google's search engine. Interflora claims it has an exclusive right to that word since it is a trademark — but that Google searches for "Interflora" results on sponsored ads not just for Interflora, but for Marks & Spencer. A thorny issue, to be sure.
In evaluating the suit, Niilo Jaaskinen, advocate general to the European Court of Justice, recommended to the Court last week that companies that own trademarked terms should be able to restrict their usage if a consumer is confused by who is selling the advertised service.
While Jaaskinen's assessment is merely an opinion, it is important because the Court generally goes along with the recommendations of the advocate general. It may take up to six months for an official ruling.
Specifically, Jaaskinen stated advertisers should not be allowed to buy trademarks as keywords if an advertisement "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."
Previously, the dispute over keyword usage seemed to pit advertisers against Google. As we've noted, Google has continued to sell keywords to "legitimate" advertisers as the result of an earlier European Court ruling indicating that Google was not liable for trademark infringement in a case brought by LVMH and other brand owners. Recently, Google announced it has been taking some measures of its own to control the use of keywords by counterfeiters. Still, the problem plagues Google and trademark owners.
What's the bottom line? Well, should the court goes along with Jaaskinen's opinion and rules in favor of Interflora, "the decision could have financial ramifications for Google if advertisers have less latitude to buy rivals' brand names as keywords for so-called sponsored links," according to the New York Times. For its part, Google is downplaying the opinion, stating that it was "broadly consistent" with the Court's ruling last year.
A statement from Google indicated, "We believe that user interest is best served by seeing more relevant ads, ensuring useful and informative advertising for a wide variety of different contexts. We also believe that consumers are smart and are not confused when they see a variety of ads displayed in response to their search queries."
Of course, it is the last part of this statement that is the crux of the matter. Advertisers who own trademarked brand names don't like the fact that the terms can be used as keywords by others who might be selling counterfeits or, in the case of Interflora vs. Marks & Spencer, selling services that directly compete with a trademarked name.
Chances are this controversy is far from over.