On 21 May, Arnold J in the High Court delivered his judgment in the ‘Google AdWords’ litigation between Marks & Spencer (M&S) and Interflora. This article summarises the High Court decision but also asks where that decision leaves comparative advertising — something of a forgotten man in this litigation.
Applying the reasoning of the European Court, Arnold J held that M&S had infringed Interflora’s trademarks. This was because M&S’s advertisements, which were generated when a user searched via Google for certain of Interflora’s trademarks (such as INTERFLORA), did not enable reasonably well-informed and reasonably attentive internet users to work out (or to work out without difficulty) if the service referred to in the advertisements originated from the trademark proprietor — in other words, Interflora, a business connected with it, or a third party, when the latter was the case. This damaged the origin function of the trademark.
It is worth at this point recalling that the infringement related back to 2008 when, perhaps, internet users were not as adept as they are now, five years later, at distinguishing keyword results from normal search term results…
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