Flowering Certainty and Floundering Doubt

September 28, 2011

On an initial reading of the judgment in Interflora v Marks & Spencer, I was left with the feeling that, when the High Court does eventually apply the answers to the referred questions, it will find in favour of Interflora. Of course, if I was always right about such things after a quick glance at a complex judgment (a very quick glance – I was on holiday), I would have better things to do than write speculative blog posts but it seems like others take a similar view. OK, the ‘free-riding’ element of the judgment is a bit of an unknown quantity and other uncertainties remain but it all sounded bad for M&S. Moreover, the judgment of Arnold J was allegedly foreshadowed by the Opinion of the Advocate General and that definitely meant an Interflora ‘win’.

But on mature reflection, I am a little suspicious of all the certainty. When the questions were referred, I don’t recall feeling with such fervour that the original M&S ploy of buying ‘Interflora’ from Google and related adwords was little better than setting up a collapsible stall on Oxford Street selling ‘Channel’ and ‘Deore’. I suspect that the smell of the thing has changed with a change in the wind. Where once it felt like the M&S behaviour had been like Old Spice – not appealing but quite manly – now they could splash it on all over and it would not hide the whiff (ie it‘s a bit Brutish).

Fashions change in perfumes and even in flowers (which might well have made for more appropriate metaphors) and I suspect that fashion has affected my enthusiasm for widening the responsibilities for major players on the Internet. While M&S are likely to pay handsomely for the short-term advantage gained from the purchase of the Interflora-related keywords should they lose the case in the High Court, I was a little unhappy because I felt that Google should lose out most because it is their ball-game played to their rules. It is true that, if the principles set out by the ECJ here and in Google France are fully embraced (with a safe margin for error), a lot of adwords lose their appeal. That obviously means lost revenue for Google. Moreover there is a sting in the tail – all this could mean that they need an effective EU-wide (at least) system for spotting when they should not be selling an adword. That’s expensive too but, I initially thought, hardly expensive enough to hurt Google.

The widening of Google’s responsibilities (through this case, Google France and perhaps by application of the principles arising from the L’Oreal v eBay litigation) seemed appealing – and is perhaps echoed by the moves to foist greater responsibility for policing copyright breach onto ISPs. That’s an area that is blooming for sure (some would say ‘blooming awful’ but by no means all would agree). I know that I am confusing principles here – but maybe there is an element of cross-pollination going on.

All my certainties evaporated in an attempt to explain the judgment to a non-lawyer. First, the idea that anyone with half a brain would think that M&S was part of Interflora was laughed at (which raises an issue about the size of the brains of ECJ judges which we must let pass). Secondly, the comparison with the real world that I attempted to draw did not seem to work at all. Consider, I began eloquently, entering PC World and asking for an iPad and then being directed by the salesperson (incentivised by an attractive commission) to look at Samsung tablets or other similar devices. And that is when I began to flounder because this awful scenario would not lead the salesperson to be clapped in irons by Apple, it is exactly what happens in many shops every day.

All in all, I think it is going to be trickier than I first thought for Arnold J to resolve this.

But not as tricky as the great unasked question in the case: ‘Why in the 21st century is anyone using the Internet to search for Interflora?’ Just how sick is our old friend disintermediation? If you want to send your distant mother-in-law or lover a bunch of flowers, why would you use Interflora – or M&S? You can find a florist near to said lover or ma-in-law (using a search engine perhaps), then you text, e-mail or even ring the local florist and tell them where the recipient lives, what flowers he or she likes and what message to send with the flowers. You save money by cutting out the Interflora cut. You have to be careful not to get them mixed up (the messages that is – this is not a Jeremy Kyle special on forbidden love) but I don’t think Interflora offers insurance should you make that mistake. That kind of transaction was one of the things the Internet was supposed to enable and it really does. The limits on disintermediation (and the reason that an aggregator will always offer me better hotel rates than the hotel itself) will have to await more expert analysis than I can hope to offer – but it seems to me that disintermediation is very sick indeed if Interflora still makes a profit.