View Author June 2013
The English High Court has given its judgment in the now five-year old trade mark dispute concerning the use by M&S of Interflora’s registered trade marks as Google Adwords. Applying the law as previously stated by the Court of Justice of the European Union, the High Court ruled in Interflora’s favour and found that M&S’s use of “Interflora” in keyword advertising amounted to trade mark infringement. The Court held that a significant proportion of consumers who searched on Google for “Interflora” and then clicked on the M&S advert displayed were led to believe, incorrectly, that the M&S flower delivery service was part of the Interflora network, resulting in an adverse effect on the origin function of Interflora’s trade marks. What appears to have been decisive in this case is the unique nature of the Interflora network. Interflora has a number of tie-ups with some of the major high street retailers, including Tesco and Sainsbury’s. There was every reason, therefore, for consumers typing in “Interflora” and presented with M&S adverts to believe that there was a similar tie-up here. The case is heartening for trade mark owners as it shows that, contrary to previous indications, the Courts are willing to apply the law in their favour. However, advertisers should not necessarily stop using their competitors’ trade marks for keyword advertising.