Flower power: High Court rules that Marks & Spencer did infringe Interflora’s trademark

By Paul Herbert

The High Court has handed down judgment in the long-running case of Interflora Inc v Marks & Spencer plc [2013] EWHC 1291 (Ch), May 2013. The case concerned the unauthorised use of third-party trademarks as advertising keywords through Google’s AdWords service.

The dispute arose after M&S bought multiple keywords on AdWords which contained the trademark Interflora, the name of the world’s largest flower delivery network. Google AdWords displays sponsored advertisements (positioned in a specific part of its search results page) in response to a user searching for particular keywords. Keywords are available to be purchased and, where there are multiple purchasers, an auction is held to determine who will benefit from the most attractively positioned advert. Google generates revenue by taking a fee from the advertiser on a ‘cost-per-click’ basis.

After M&S purchased various Interflora keywords, users searching for Interflora were initially presented with a link to M&S’s website, where it was possible to order flowers for delivery. Interflora brought proceedings on the basis that M&S had infringed its trademark under Articles 5(1)(a) and 5(2) of the Trade Marks Directive (now replaced by consolidated Directive 2008/95/EC) and Articles 9(1)(a) and 9(1)(c) of the Community Trade Mark Regulation (now replaced by 207/2009/EC)…

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