Interflora Inc & Anor v Marks and Spencer Plc & Anor

Interflora Inc & Anor v Marks and Spencer Plc & Anor

Marks and Spencer's use of 'interflora' and similar keywords as Google AdWords did not enable reasonably well-informed and reasonably observant internet users, or enabled them only with difficulty, to ascertain whether M&S's flower delivery service was independent of the Interflora network. As a result, a significant proportion of consumers were led to believe, incorrectly, that M&S's service was part of the Interflora network. This adversely affected the origin function of the Interflora trade marks and constituted infringement under Article 5(1)(a) of the Directive and Article 9(1)(a) of the Regulation.

Parties
First Claimant: Interflora, Inc.; Second Claimant: Interflora British Unit; First Defendant: Marks and Spencer PLC; Second Defendant: Flowers Direct Online Limited
Jurisdiction
England and Wales
Judgment Date
21 May 2013
Procedural Posture
Intellectual Property (trade Mark) Infringement / Judgment After Full Trial
Outcome
Claim allowed in part; Marks and Spencer found to have infringed Interflora's trade marks under Article 5(1)(a) of the Directive and Article 9(1)(a) of the Regulation.
Legal Topics
Keyword Advertising, Trade Mark Infringement, Google Ad Words, Likelihood of Confusion, Origin Function, Investment Function, Unfair Advantage, Dilution, Comparative Advertising
Intellectual Property Trade Mark Law European Union Law Keyword Advertising Trade Mark Infringement Google Ad Words Likelihood of Confusion Origin Function +4 more

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Parties

Interflora, Inc.

First Claimant

Interflora British Unit

Second Claimant

Marks and Spencer PLC

First Defendant

Flowers Direct Online Limited

Second Defendant

Procedural Posture

Intellectual Property (trade Mark) Infringement / Judgment After Full Trial

Legal Issues

  1. 1 Whether Marks and Spencer's use of 'Interflora' and similar terms as Google AdWords keywords infringed Interflora's registered trade marks under Article 5(1)(a) of Directive 89/104/EEC and Article 9(1)(a) of Regulation 40/94/EC.
  2. 2 Whether such use adversely affected the origin function or investment function of the trade marks.
  3. 3 Whether M&S's conduct took unfair advantage of or caused detriment to the distinctive character or repute of the trade marks under Article 5(2)/Article 9(1)(c).

Ratio Decidendi

Marks and Spencer's use of 'interflora' and similar keywords as Google AdWords did not enable reasonably well-informed and reasonably observant internet users, or enabled them only with difficulty, to ascertain whether M&S's flower delivery service was independent of the Interflora network. As a result, a significant proportion of consumers were led to believe, incorrectly, that M&S's service was part of the Interflora network. This adversely affected the origin function of the Interflora trade marks and constituted infringement under Article 5(1)(a) of the Directive and Article 9(1)(a) of the Regulation.

Court Disposition

Claim allowed in part; Marks and Spencer found to have infringed Interflora's trade marks under Article 5(1)(a) of the Directive and Article 9(1)(a) of the Regulation.

Orders

  • Declaration of infringement against Marks and Spencer PLC for use of 'interflora' and similar keywords as Google AdWords.
  • Injunction and/or further relief to be determined at a later hearing.