12 October 2010 - 17 October 2010
Field Trip to Strasbourg, the Alsace, Trier, and Bastogne
The European Court of Justice
On the 13th of October, our class visited the European Court of Justice, where we observed a case between the retail company Marks and Spencer and the flower delivery collective Interflora. Interflora was suing Marks and Spencer for buying and using the Interflora keyword to divert internet traffic from Interflora's website to that of Marks and Spencer's. Claiming that such an action was free-riding on the brand, undermining and diluting the brand, and confusing its consumers, Interflora had unintentionally opened a new debate on the nature of brand recognition and trademark law in the context of internet-based commerce.
Once upon a time, I was very interested in the field of law, and for several years I believed that it would be my future career path. Many years later, I now have learned enough to realize how little I know. Precisely because of my limited comprehension of the complexities of the practice of law within the European Union, I will not attempt a technical explanation of the case that we witnessed, but I will of course provide as impartial a view as possible.
The attorney representing Marks and Spencer defended his client by suggesting that by limiting the use of such keywords exclusively to Interflora, Google would essentially be undermining the intrinsic purpose of the internet, namely, to provide alternatives to the user. Just as a Google search would direct the consumer to a variety of company websites offering the same service, so too would a consumer have the freedom to choose between multiple alternatives in any free market. The attorney appealed to the judges to protect the consumer's right to the freedom of choice. By constraining the search results to Interflora alone, Google's service would be denying the consumer the inherent benefits of a free market, thereby directly violating the principles of economic liberalization.
Throughout the debate I made a few observations. Firstly, the attorney for Marks and Spencer was far superior to his opponent in the art of rhetoric. Secondly, he was much better organized than his opponent, who was unable to produce specific statistics to the judges when asked. Thirdly, and most importantly, the attorney for Marks and Spencer was able to alter the debate into a scenario in which he had a great advantage. The debate itself concerned the recognition of trademarks in Google keywords. Interflora held the trademark on Interflora, yet Marks and Spencer bought the use of the term as a keyword, meaning that a search for "Interflora" in Google would direct the consumer not to the Interflora website, but to a page in which multiple companies were featured. Marks and Spencer was in a more prominnent position than Interflora. The defending attorney subtley changed the debate into one focusing on consumer choice, an argument that is much easier to defend. For this reason, I believe that he will ultimately triumph over his opponent.
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