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In what circumstances does keyword advertising amount to trade mark infringement? Theo Savvides, a partner at Bristows LLP, considers the Court of Appeal decision in Interflora Inc and another v Marks and Spencer plc  EWCA Civ 1403,  All ER (D) 55 (Nov)
M&S is one of the best-known retailers in the UK and has sold flowers online since at least 2000. Interflora is the operator of the well-known flower delivery network. M&S advertises its flowers online and uses the Google AdWords service, so that when users of Google’s search engine enter ‘interflora’ as a search term, anadvertisement appears which promotes the M&S flower service and has a link to M&S’s website, though the word ‘interflora’ does not appear in the advertisement itself. Interflora sued M&S for trade mark infringement.
© Danard Vincente
The case has been running for just short of six years. Over this time it was referred to the Court of Justice of the European Union (CJEU) before then proceeding to trial. The CJEU ruled that the test for liability focused on the manner that the advertisement was presented in response to the trade mark search term. The key question was whether M&S’s advertisement on the Google search engine results page enabled the reasonably observant and attentive internet user to ascertain whether the goods or services referred to in the advertisement come from the trade mark proprietor (or a linked entity) or from a third party.
The High Court found that M&S infringed on the basis that those who searched ‘interflora’ and then clicked on the advertisement were led to believe incorrectly that M&S’s flower service was part of the Interflora network. In coming to this decision, the judge held that M&S had the onus of proving that the advertisement was clear that the goods or services advertised did not come from the trade mark owner or an
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