Interflora Inc v Marks & Spencer plc – The Verdict

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:

  1. Detriment to distinctive character of the mark
  2. Detriment to the reputation of the mark
  3. 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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