M&S vs Interflora. An example of Advertising grey areas

I found an interesting Econsultancy article which resume a curious dispute between M&S and Interflora. It is all about the right of M&S to bid on ‘Interflora’ keyword.

For who is not keen in web advertising you just need to know a couple of things.

Firstly, when you plan to advertise on the web in order to be seen by your potential customers you need to design your banners or your text-ads linked to some keywords. If for example I own a shop called ‘JB’ located in London and I sell flowers, it is normal that I advertise on the web with adverts linked to keywords such as ‘JB’, ‘flowers’ and ‘flowers in London’.

Secondly, if I am ‘JB’ I can even write ads with the keyword ‘Interflora’ inside, like saying ‘JB sells flowers faster than Interflora’. I can do that, but as all other traditional media, this is comparative advertisement and it must follow some additional rules.

This dispute is interesting because well shows some complexities behind advertisement lawfulness.

1) Trademark law features grey areas, especially in advertising.

In advertising any advert should not be ‘misleading’. That’s it. How can you measure the threshold of being misleading? You must refer to the “average person” feelings and perceptions. For example, if I send you the typical banner ‘you will become a millionaire’ and you click, after you have not many reasons you didn’t become a millionaire because the ‘average person’ can understand it is written with the typical exaggerating attitude of advertisers.

Oh! I forgot it! take into consideration that the channel you use to convey the advert may refer to different audiences,  which in turn may be characterized by different ‘average users’. Mmm…

2) Grey areas in trademark law can only expand when the usage of trademarks is connected to the use of internet and all those technologies that are recent and thereby little regulated.

3) In EU you have got a coordinated ‘Community Trademark Law’, which in the case of advertising is mainly constituted by principles and guidelines. However, Member States are in charge of the final application of trademark law country by country.

what’s the problem? The problem is that in each State regulating authority is managed by self-regulated principles, i.e. principles and guidelines are written by all interested parts: advertisers, advertising agencies and media. This whole turns often into dicretional judgment influenced by traditions, culture and whatever other local peculiarities

FINAL POINT: when it comes to COMPARATIVE ADVERTISING it’s…just a whole mess. In this case not only the ad should not be misleading, it should respect some additional rules.

For example, this famous comparative advert of Pepsi VS CocaCola is something that will never be shown in Italy for instance. Simply because the law as well as the commercial culture in US is very different from Italy. Why? Because in EU comparative advertising should be based on well-grounded basis, this example above is instead based on very evocative elements.

In EU a comparative advert should not only avoid to be misleading, create confusion and damage others’ brand reputation. It should address the same needs and compare verifiable characteristics. This is the reason why most of the time in Italy and other countries the comparison is “my brand versus the category” and it considers price, likely the most verifiable feature of a product (not in bank accounts…ehehe).

Then, going back to our case of M&S bidding on ‘Interflora’ keyword, why it may be well considered comparative advertising?

From the legal standpoint, comparative adv is any ad that explicitly or by implication, identifies a competitor, or goods and services offered  by a competitor.

Yes, by implication.

At this point, I would like to discuss if, by simply being in a SERP (Search Engine Result Page) in the area of the Interflora, I may be implicitly considered as a competitor. If yes we have to talk about comparative advertising.

Firstly, as much as the advert copy of M&S does not show the keyword ‘Interflora’ to the public, this cannot create confusion for the average reader in regards to the product origin of M&S and Interflora respectively. Similarly, the advertising function of Interflora trademark is safe as well as its brand image.

Secondly, if M&S bids on Interflora, it means that Interflora brand shows its attraction power and M&S cannot interfere directly on this power just by bidding. M&S may interfere instead into the Interflora power of retaining its customers loyalty at a first glance by redirecting part of Interflora customers into the M&S website. However, if the Interflora product is different enough, its customers will come back. The possibility of a alternative is the essential of a fair competition.

Thirdly, the brand can be diluted because if Interflora is successful all world’s webmasters and online marketers will bid on its brand kewyord. Nonetheless webmasters are not the average customer, so do not bother on this issue.

Finally, please consider that Interflora has got a GREAT peculiarity: it is a network of several point of sales gathered together by a common booking technology. This peculiarity is the main element that let many doubts arose in the European Court. The ‘network’ typology is in fact open to other private companies and this increases the probability that the “average internet user” thinks that M&S is part of the Interflora itself => this generate confusion upon the product’s origin => Interflora odds to win the cause rise as well!

FINAL POINT: if you are bidding on other brands’ keywords don’t worry, you are far from being caught liable from the juridical point of view. This seems confirmed from what stated by the major “search and marketing platform” service provider: Google itself! (at least in Europe and USA).