EU Court Seeks to Set Parameters of Online Advertising

An adviser to the European Court of Justice has said online advertisements that could unduly confuse consumers should not be allowed.

The advocate general, Niilo Jääskinen, was referring to a case brought by Interflora, an international flower delivery service, against British retailer Marks & Spencer. The case centers around Marks & Spencer's purchase of 'Interflora' as a keyword on Google's advertising service.

"To my mind the display of the [Marks & Spencer] ad as a consequence of typing 'Interflora' into a search engine creates in the context of this case an association that Marks & Spencer is part of the Interflora network," said Jääskinen in his opinion, published on Thursday.

This lawsuit is the just the latest in a number of cases that have sought to define the limits of search engine advertising under European Union law. Two similar cases occurred last year. In July, judges in a case brought by temporary cabin maker Portakabin, ruled that companies using competitors' names as Internet advertising keywords do not break European trademark laws.

This upheld an earlier ruling in the Google-Louis Vuitton case, when the latter claimed that its brand name triggered ads for companies selling counterfeit Louis Vuitton goods. The court in that case found that if ISPs were "neutral" about the content, then trademark law was not infringed.

In the latest case, Interflora chose not to attempt to sue Google, but rather the service user. Jääskinen said advertisers should be blocked from buying rival trademarks as keywords if an ad "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."

For its part, Google said that it believes that consumers "are smart and are not confused when they see a variety of ads displayed in response to their search queries." Confusion in the Interflora case would stem from the fact Interflora is a network of independent shops and due to the advertisement, consumers may believe that Marks & Spencer is part of that network.

Though Jääskinen favored Interflora, he pointed out that the case, which centered around the possibility of confusion for customers, was different than other trademark disputes. In other trademark lawsuits, companies owning trademarks with a reputation could stop other businesses from using their brands, if the other companies sought to tarnish those brands.

Advocate General opinions are not binding on the court but are intended to advise judges and are followed in the vast majority of cases.

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