I have just seen the recent judgment in Parker v Skyfire Insurance reported on the excellent Civil Litigation Brief blog.
On the face of it this case has little to do with intellectual property. A car insurance company is trying to avoid paying out on a claim for credit hire charges incurred by a claimant whose vehicle was damaged in an accident presumably caused by Skyfire’s insured driver.
So what’s the IP angle? Well, Skyfire’s objection to paying the claim (one of their objections, anyway) was that the credit hire contract was voidable for misrepresentation on the basis that the claimant was the victim of “Google-spoofing”. What happened is that:
“Following the accident, the Claimant, Mr Parker, immediately attempted to notify his insurers, Hastings, of the accident. He Googled their name and rang the first number in the list of search results. Unbeknownst to him, he was in fact speaking to a claims management company…”
This pattern is apparently so common that the car insurance industry has given it a name – “Google-spoofing”. Claims management companies buy Google Adwords so that when somebody searches for the name of their insurer and keywords like “accident report”, it is a link to a claims management company, and not the insurer, which is likely to be the first result.
Is this even legal? Can you buy Adwords matching someone else’s trade mark? The point did not arise directly in this case, but in IP circles the question is quite an old one now, and it does have an answer of sorts – it depends.
Applying the CJEU’s ruling in Google France v Louis Vuitton, the Court of Appeal gave us some points of principle in Interflora v Marks & Spencer all the way back in 2015.
-
- The critical question to be answered is whether the advertisement does not enable normally informed and reasonably observant internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to in the advertisement originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.
- The trade mark proprietor is entitled to prevent the display of third party advertisements which such internet users may erroneously perceive as emanating from that proprietor or which suggest that there is a material link in the course of trade between the goods or services in question and the proprietor.
- If the advertisement, though not suggesting an economic link, is vague as to the origin of the goods or services in question so that such internet users are unable to determine, on the basis of the advertising link and the commercial message attaching to it, whether the advertiser is a third party or, on the contrary, is economically linked to the proprietor, then this will have an adverse effect on the origin function of the trade mark.
It is not difficult to find examples of this so-called “google-spoofing” by claims management companies. A few quick searches for well-known car insurance brands followed by “accident report” revealed plenty.
It is noticeable that none of the claims management companies use distinctive brand names of their own in the google ads. The title of the ad is invariably entirely generic and descriptive – “Accident Claimsline”, “Car Accident Claim”, “Report Accident Claims Only”. It is almost as if the claims management companies want to avoid dispelling any confusion that a searcher might have by making it clear who they are actually about to call.
The closest any of the advertisements I looked at came to actually making it clear that they were not an insurance company was a statement that “We work independently of insurers to make sure your interests are protected”. And that was part of a larger block of text which might easily not be read in full.
One of the advertisements even used the term “Official number”, which in the context of a search result for a named insurance company, might be said to be an outright lie.
This kind of search will likely often be made with some urgency and at a time of considerable stress, on a mobile device, at the roadside immediately following an accident. It would not be very surprising if typical searchers do not read every word diligently before calling a number.
So do these adverts enable a normally informed and reasonably observant (bearing in mind they have just been in a car crash!) internet user to ascertain without difficulty who they are about to call? This looks very doubtful in my opinion. The vagueness as to the origin of the service in question, by the use of generic titles and no distinctive brands of their own, appears to point toward an adverse effect on the origin function of the trade mark, which leads to infringement.
So if the car insurance industry really want to reduce their exposure to credit hire claims (and there is every indication that they are costing an absolute fortune) perhaps they should look at mitigating the problem at source, by leveraging their registered trade marks to prevent the display of these adverts in the first place.
ASK AN ATTORNEY
