The High Court has ruled that Marks and Spencer’s use of ‘Interflora’ as a Google AdWord to advertise its own floral services constituted trade mark infringement. The judgment marks the end of a claim which began in 2008 and which was passed to both the Court of Appeal and the European Court of Justice before returning to the High Court. There has been some concern as to how this will affect the use of keywords in future.
The facts behind the claim
Mr Justice Arnold concluded that the advertisements by Marks & Spencer “did not enable reasonably well-informed and reasonably attentive internet users, or enabled them only with difficulty” to ascertain whether the service referred to in the advertisements originated from Interflora or an economically-linked undertaking. He stated that many consumers who clicked on the advertisements after conducting a search against “Interflora” were incorrectly led to believe that Marks & Spencer were part of the Interflora network.
Marks & Spencer’s use of the Interflora mark made it difficult for consumers to identify the origin of the goods and services being provided under the Interflora mark, meaning Marks & Spencer had infringed Interflora’s trade mark.
The judgment means that Marks & Spencer will not be able to bid on the term “Interflora” – which is a registered trade mark – as a Google AdWord, although the judgment may be appealed. A separate hearing will take place later this year to assess damages and costs.
How will the judgment affect keyword use?
The High Court judgment was reached partly in relation to evidence of consumer awareness of keyword advertising and the difference between paid-for search results against naturally-occurring search results. Mr Justice Arnold accepted that many Internet users understood the difference, but concluded that a significant number in the UK do not.
It is worth pointing out that the understanding of consumers in relation to keyword advertisements was assessed as at mid-2008, when proceedings were issued. Lawdit’s advice to advertisers is not to use a competitor’s trade mark in their advertisements. Where an advertiser insists on using a competitor’s trade mark, it should clarify that there is no link between it and the owner of the trade mark in question.
It is also worth bearing in mind that Interflora’s business model allows its florists to trade under their existing name and that Marks & Spencer did nothing to dispel an assumption that they may be part of the Interflora network. A different judgment may have been reached if the claim involved two well-known competitors who would not be understood to be economically linked by the general public.
By Aasim Durrani. Aasim is a Trainee Solicitor and can be contacted on email@example.com