Interflora v Marks and Spencer; Flowers Direct Online

(1) Interflora, Inc (2) Interflora British Unit v (1) Marks and Spencer plc (2) Flowers Direct Online Ltd

April, 7 days, Chancery division

For the claimant Interflora:

11 South Square’s Michael Silverleaf QC leading Simon Malynicz, instructed by Pinsent Masons partner Iain Connor

For the defendant M&S:

One Essex Court’s Geoffrey Hobbs QC and Emma Himsworth QC, instructed by Osborne Clarke partner Theo Savvides

Emma Himsworth QC
Emma Himsworth QC

This case has already been to the European Court of Justice (ECJ) but it has been left to the High Court to decide in 2013 whether Marks & Spencer (M&S) infringed Interflora’s trademark in this long-running dispute.

The outcome will have ramifications for retailers who use the world’s most-popular search engine, Google, to help promote their products.

The row erupted in 2008 after M&S bought several of the florist’s trademark keywords and phrases in Google AdWords. This meant searching ‘Interflora’ on Google would trigger the display of a link advertising M&S’s flower delivery service.

The text in the link made no reference to Interflora, although it was a supplier used by the retailer.

The florist claimed this impeded its search engine optimisation (SEO) results. The ECJ said each case would need to be decided on its own merit.

It is the first case of this type to come to trial in the UK and will provide an opportunity for the court to apply the ‘reasonably well-informed and reasonably observant internet user test’ proposed by the ECJ.

Osborne Clarke has instructed One Essex Court’s Geoffrey Hobbs QC and Emma Himsworth QC for M&S.

They will go up against 11 South Square’s Michael Silverleaf QC, instructed by Pinsent Masons.

The CoA has already refused Interflora permission to rely on evidence of witnesses who were identified by a survey which, it was argued, provided evidence relevant to the test.

The outcome will be closely watched as it will affect the way competitors can engage in keyword advertising on search engines.