Interflora comes out of High Court smelling of roses in latest Google AdWords case

The UK High Court has held that the purchase by Marks & Spencer (M&S) of Google AdWords, which includes the Interflora trademark, infringes that trademark. The judgment demonstrates that, while the use of a third-party trademark for keyword advertising is not always unlawful, in certain circumstances (in particular where the trademark owner operates a network of independent businesses) the facts will give rise to a finding of trademark infringement.

In 2008, M&S purchased several of Interflora’s trademarked keywords and phrases as Google AdWords. This meant that any internet user who searched for ‘Interflora’ on Google would be presented, above or beside the (non-sponsored) so-called ‘natural’ results and links, with an advert and link for M&S’s online flower delivery service.

Following the Court of Justice of the European Union (CJEU) judgment, the High Court was required to determine whether there had been infringement of Interflora’s trademarks by viewing the circumstances from the perspective of the ‘reasonably well-informed and attentive internet user’. The CJEU held that the test is whether these internet users would be unable (or would be able only with difficulty) to ascertain whether the services sold through M&S’s purchased AdWords originated from Interflora or a business linked to Interflora…

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