In an important and much anticipated decision on trade mark infringement in the context of internet advertising, the European Court of Justice (ECJ) has ruled on major retailer Marks & Spencer's ability to use Interflora's trade mark as part of its keyword advertising campaign on major internet search engines. The ECJ did not finally decide the case, but said that the key issue was the ability of the 'well informed' internet user to distinguish between Marks & Spencer and Interflora. The High Court will now determine the case finally in the coming months.
Keyword advertising products, such as Google Adwords, allow advertisers to purchase words or phrases which, when searched by internet users on Google, create a link to the advertiser's website and its products or services. In the case recently decided by the ECJ, M&S purchased several phrases containing the word "Interflora", which meant that searching "Interflora" on Google would display a link advertising M&S's flower delivery service.
Interflora commenced proceedings against M&S alleging that, by purchasing phrases containing the registered trade mark "Interflora", M&S had infringed that trade mark. The Court decided M&S's use of Interflora's trade mark could only be restricted if it adversely affected at least one of three functions of Interflora's trade mark, namely, the ability of the mark to indicate its origin, the advertising function and finally the investment function, which allows trade mark owners to build a reputation capable of attracting customers and retaining their loyalty.
There was ultimately no ruling by the ECJ upon whether M&S was in fact infringing Interflora's trade mark. This has been referred to the High Court of Justice for final determination. One relevant question for the High Court will be whether a 'well informed' internet user would be aware that M&S is not a subsidiary of Interflora. If the High Court decides that the 'well informed' internet user cannot distinguish M&S as a service provider from Interflora as the trade mark owner, it leaves the door open for the High Court to prevent M&S from using Interflora's mark in the way it has been .
Businesses using keyword advertising should continue to follow this case closely. If you would like to speak with one of our intellectual property solicitors about the issues in this case, please contact us via e-mail or by phone on 020 7611 4817.
