Pinsent Masons wins trademark dispute for Interflora against M&S

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  • Rather embarrassing for M&S's advisers that it was left to the judge to point out a possible defence of lawful comparative advertising - which he could not consider as it was not put to him. If I were M&S I'd be asking some questions of my counsel - why didn't they think of that one? If they had, the outcome might have been very different.

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  • Would it have been different? The Comparative Advertising Directive includes a provision on confusion, Arnold effectively held that confusion was occuring by his judgement. I appreciate that the tests under the Comparative Advertising Directive and the standard CJEU case law on the 'origin' test are slightly different, but I find it hard to believe that the decision would have been 'very different' if the Comparative Advertising Directive argument would have raised as a defence. This case turned on the specific facts of the Interflora business model.

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  • Women should know their place.

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