In a controversial and complex case, the High Court has upheld Interflora’s allegation that its trade mark has been infringed by Marks & Spencer.
Google's service allowed Marks & Spencer to show adverts for its flower delivery service in the sponsored links when Internet users searched for “Interflora”.
However, the text of the sponsored link made no mention of Interflora despite that being the brand that the person carrying out the search was looking for.
This is known as keyword advertising, a practice which has been vigorously debated since Google made the service available.
Following guidance provided by the European Court of Justice, the High Court decided that Interflora’s trade mark had been infringed because Marks & Spencer’s advertisement, i.e. the sponsored link, did not enable reasonably well-informed and reasonably attentive online users in 2008 to work out, or only with some difficulty, that the flower delivery service mentioned in the advertisement originated from Interflora, a business connected to it or someone else.
The judge found that a significant proportion of consumers who searched for “Interflora” and then clicked on Marks & Spencer’s sponsored link displayed in response to the search were wrongly led to believe that M&S's flower delivery service was part of the Interflora network of flower delivery businesses.
As such, the High Court found that one of the key functions of a trade mark, namely to indicate the origin of a product or service, had been damaged.
Given the number of unresolved issues relating to sponsored links there is a strong likelihood that Marks & Spencer will appeal. In particular, the High Court appeared to suggest that what Marks & Spencer had been doing merely amounted to legitimate comparative advertising.
If and until M&S appeal this controversial decision, to avoid being sued for trade mark infringement businesses must ensure that if they engage in keyword advertising, the wording of their advertisement must enable consumers to identify the origin of the products or services they were searching for, rather than those of one of their competitors.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.