Blooming infringement

Interflora has won a five year battle against UK retailer Marks & Spencer, following a Court ruling that using a rival’s trade mark in search engine keyword advertising constituted an infringement.

Judge Arnold said in his ruling that “A significant proportion of the consumers who searched for “interflora” and the other Signs, and then clicked on M&S’s advertisements displayed in response to those searches, were led to believe, incorrectly, that M&S’s flower delivery services was part of of the Interflora network.  Thus M & S’s use of the Signs had an adverse effect on the origin function of the Trade Marks.”

Rhys Hughes, President of Interflora’s British Unit, in welcoming the decision, said “Keyword advertising is a very powerful tool and so it is vital for consumers protection that internet search results take consumers directly to the brands they are looking for.”

Google’s adwords have been controversial with trade mark owners from the start. Many companies, including Louis Vuitton, sued Google for allowing competitors – and in some instances counterfeiters – to use their companies’ trade marks to return their competitors’ websites to the top of search results.  In most cases of this nature Google, as the search engine provider, has been vindicated.  Therefore, this case is of particular significance since the court held that the use of the Interflora mark in keyword advertising amounts to trade mark infringement.

Unfortunately, however, the facts are specific to this case in that Interflora is a network and it is possible that M&S could be a member of that network.  The general internet user would not be able to tell from the M&S website that M&S was not a member and therefore this does not mean that the use of a competitor’s mark in keyword advertising will necessarily be trade mark infringement.

Carla MacLachlan

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