Trade Marks and Adwords

M&S have for some time now been using the trade marks INTERFLORA to sell its own flowers on line. It used the adwords system ie someone types in INTERFLORA and you will see ( amongst other things) ads for M&S. After a referall to the ECJ, the case came back to Arnold J who found that M&S had infringed the trade mark under Article 5(1)(a) of the Trade Marks Directive and Article 9(1)(a) of the Community Trade Mark (CTM) Regulation because a significant proportion of consumers who searched for “interflora”, and then clicked on M&S’s advertisements displayed in response to those searches, were wrongly led to believe that M&S’s flower delivery service was part of the Interflora network, so that the mark’s origin function was adversely affected.

It seemed such a blindingly obvious answer that its a wonder that it has taken so long to reach this conclusion.

Sometimes the legal wheels can be so slow.

Michael

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