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 News From You
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Week ending March 26, 2011
- Comment from Intellectual Property specialists Marks & Clerk Solicitors on Court advisor’s recommendation -
The Advocate General of the European Court of Justice (ECJ) has today recommended that Marks & Spencer be found liable for trade mark infringement by using ‘Interflora’ as a Google AdWord. The adviser to the Court handed down his non-binding opinion in this key digital trade mark case on questions referred to the ECJ by the High Court of Justice of England and Wales. The ECJ ruling, which may well be in-line with the advice of Advocate General Niilo Jääskinen, is likely to follow in a few months’ time.
The High Court of Justice had referred questions to the ECJ in 2009 during a legal battle between Interflora and Marks & Spencer. Interflora had initiated litigation proceedings after Marks & Spencer bought their rival’s trade mark as a Google AdWord so that when an internet-user entered ‘Interflora’ into the search engine, an advert for Marks & Spencer Flowers would appear. Interflora claimed this was in breach of their trade mark rights over the word ‘Interflora’.
A definitive ruling handed down by the ECJ in March 2010 established that Google was not liable for trade mark infringement by selling the advertising service to rival companies. However, the decision crucially left the purchaser’s liability for infringement open to question. That particular case saw Google pitted against several high-profile brand owners, including Louis Vuitton owner, LVMH. Today’s proposal would place liability with the purchaser of the AdWord where consumers are led to believe goods available through the AdWord link were the trade mark owners’.
Kirsten Gilbert, Partner at Marks & Clerk Solicitors, comments:
“Interflora will be the victor if today’s recommendations are followed. The Advocate General considers that use of a rival trade mark as a Google AdWord constitutes trade mark infringement where the consumer is unable to determine whether or not the advert is for the brand they originally searched for.
“Last year’s Google case established that purchasing a rival’s brand name as an AdWord is not trade mark infringement per se. But while online consumers are much more informed than fifteen years ago, rivals should shy away from using each other’s trade marks for their own commercial purposes where doubt or ambiguity as to the origin of the goods or services could arise.
“This opinion is based heavily on the particular facts here – namely that the trade mark ‘Interflora’ denotes a commercial network of florists providing certain services and products. However, it will bring some comfort to brand owners that in such situations where members of the public could believe that the competitor is a member of their commercial network, they can prohibit the use of their trade mark as an AdWord.
“After last year’s ruling in its favour, Google will have to wait for the Court’s decision in this case before declaring a decisive victory. Although not represented in this legal battle, it is still directly affected – the AdWord service is a major source of revenue for the California-based corporation. With this opinion, Google’s customers may well reconsider how extensively they want to use a competitor’s mark as an AdWord.”
egta, the association of television and radio sales houses, has today launched its dedicated website on responsible alcohol advertising on European broadcast media and thereby fulfilled its second commitment to EU Alcohol and Health Forum.
egta’s new website on responsible alcohol advertising builds upon a previous publication, egta’s compendium of all existing safeguards applicable to audiovisual alcoholic beverages across the EU, and goes further by providing an even richer set of resources on responsible audiovisual advertising, now accessible on an open, user-friendly web platform.
By providing a comprehensive source of information on responsibility in audiovisual advertising for alcoholic beverages, the website serves as an effective platform to facilitate the exchange of best practice among advertising professionals from broadcast media. Accessible to the general public and connected to a wide range of complimentary on-line resources, egta’s dedicated website offers a benchmarking tool for providers of new media services in the area of responsible alcohol advertising.
The available resources include the latest news relating to the debate on alcohol advertising taking place at both the EU and national level and a collection of useful studies that, together with egta’s position papers and analysis documents, help to clarify how TV and radio sales houses ensure the highest level of responsibility on all broadcast advertising on any audiovisual media platform. On the website, advertising and media professional can also access egta’s new database that compiles in an user-friendly manner all existing safeguards (of both regulatory and self-regulatory origins) applicable to TV alcohol advertising across 22 EU countries.
You can find egta’s dedicated website on responsible alcohol advertising on EU broadcast media at www.egta.com/alcohol/index.html
The BBC Trust today published an independent report commissioned from the National Audit Office on the BBC’s management of the costs of producing continuing drama.
In 2009-10 the BBC spent £102.5 million (down from £108.6 million in 2002-03) making six continuing dramas or soap operas.
The NAO has concluded that, although the absence of formal audience-related performance objectives for individual dramas meant the NAO was unable to say whether the BBC is delivering value for money, the BBC has taken important steps towards achieving this.
The six continuing dramas reviewed were Casualty, Doctors, Eastenders and Holby City (broadcast throughout the UK), River City (broadcast in Scotland) and Pobol y Cwm (produced by the BBC for broadcast in Wales on S4C).
The review found that production costs on these long running shows are tightly controlled, and that the average cost of producing an hour of continuing drama has fallen by 20 per cent in real terms over the last eight years, with the programmes being delivered on time and largely within budget.
The report recommends the BBC strengthen its approach to achieving value for money in continuing drama by being more systematic in comparing and challenging production costs and processes.
Key points from the report and the Trust’s response include:
1. The average cost per viewer hour across the six programmes has increased in real terms by 8.9 per cent over the last eight years as a result of falling viewer numbers. However, this decline in viewer numbers has masked reductions in total production costs, which have declined by 20 per cent over the same period. Audience approval has increased by an average of 6.5 per cent over the last four years.
The Trust is pleased with the NAO’s finding that the BBC has reduced the cost of producing these dramas by 20 per cent in real terms while at the same time increasing audience approval.
2. All six programmes were found to have strong mechanisms for establishing a detailed budget and then monitoring and reporting expenditure against it, although the teams responsible for producing the continuing dramas do not use a consistent approach. Of the completed series examined by the NAO, 33 of the 46 were on, or under budget.
The Trust welcomes the NAO’s statement that the BBC has a strong culture of monitoring performance and strong mechanisms in place to establish and manage performance budgets.
3. The BBC regularly reviews the performance of programmes by looking at the number of viewers and the level of audience approval but does not set formal objectives for what programmes are expected to deliver. By setting such objectives, the BBC would demonstrably link the resources committed and what it is trying to achieve.
While some objectives – for example budgets – can be set at individual programme level, the Trust believes that it is not always appropriate for the BBC to set audience-focused objectives for individual programmes. The BBC currently sets these objectives at a channel or genre level; to set objectives at an individual programme level runs the risk of creating not only perverse or unintended consequences but also of unnecessary bureaucracy. The Trust remains committed to ensuring value for money from programmes and considers that a varied range of metrics by channel and genre is an essential tool to achieve this. However, the Trust will undertake some further work to understand how other creative organisations address the issues raised by this recommendation.
Anthony Fry, BBC Trustee with lead responsibility for value for money, said:
“The report shows the BBC has made real progress in delivering value for licence fee payers: an excellent achievement of which the BBC can feel proud. Popular, long-running dramas like Eastenders sit at the heart of the BBC schedule, generating loyalty from audiences as well as an environment for new writing, acting and production talent to flourish. They cost viewers less than they did ten years ago, while audience approval is on the up.
“We accept the majority of the NAO’s recommendations, with the exception of the suggestion that the BBC should set targets at programme level. We believe there is a risk that this could harm the BBC’s ability to produce distinctive programming by acting as a disincentive to take creative risks and creating unnecessary bureaucracy.”
Amyas Morse, head of the National Audit Office, said:
"The BBC is doing a good job of applying basic financial controls and achieving steady cost reduction across its portfolio of continuing dramas. However, it should take a more holistic approach and compare the cost of these programmes with audience levels and opinions, both targeted and achieved, as these are critical measures of broadcast performance, and a key guide to whether the continuing dramas are delivering value for money."
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