In the ongoing case of Interflora Inc v Marks and Spencer plc where M&S purchased various Ad words from Google, including ‘Interflora’, a registered trade mark, Arnold J held that under Article 5(1) and 9(1)(a) of the Community Trade Mark Regulation (CTMR) M&S had infringed the Interflora trade mark.
Article 5(1)(a) and 9(1)(a) allows a proprietor of a trade mark to prevent third parties from using any sign that is identical and related to identical goods and/or services to its sign.
Although Interflora was successful following the verdict above, they were not so successful in showing infringement under Article 5(2) and 9(1)(c). Interflora argued that M&S using ‘Interflora’ as an Ad word diluted their mark. Arnold J was not convinced that Interflora suffered any such injury. The case of L’Oreal v Bellure sets out three types of injury:
- Detriment to distinctive character of the mark
- Detriment to the reputation of the mark
- Taking unfair advantage of the trade mark’s distinctive character or reputation.
Finally, the verdict of infringement was passed on the basis that the adverts posed a risk of misleading the “average and reasonably well-informed and reasonably attentive internet user” into believing that M&S is linked to Interflora. Interflora failed to satisfy the High Court that M&S caused one of three injuries above.
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