Interflora Inc & Anor v Marks and Spencer Plc (Rev 1) [2014] EWCA Civ 1403 (05 November 2014)

Interflora Inc & Anor v Marks and Spencer Plc (Rev 1) [2014] EWCA Civ 1403 (05 November 2014)

The Court of Appeal held that the High Court judge erred in his approach to the test for the average consumer and the onus of proof, and that the legal standard requires assessment from the perspective of the reasonably well-informed and observant internet user, not a significant proportion of less-informed users. The judge's findings on confusion and the adverse effect on the origin function were undermined by procedural errors and misapplication of the legal test. The appeal was allowed and the case remitted for retrial.

Citation
[2014] EWCA Civ 1403
Parties
Claimant/respondent: Interflora Inc; Claimant/respondent: Interflora British Unit; Defendant/appellant: Marks and Spencer plc
Jurisdiction
England and Wales
Judgment Date
05 November 2014
Procedural Posture
Trade Mark Infringement Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal allowed; case remitted for retrial.
Legal Topics
Keyword Advertising, Trade Mark Infringement, Likelihood of Confusion, Origin Function of Trade Mark, Google Ad Words, Negative Matching, Injunction Scope
Intellectual Property Trade Marks European Union Law Keyword Advertising Trade Mark Infringement Likelihood of Confusion Origin Function of Trade Mark Google Ad Words +2 more

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Parties

Interflora Inc

Claimant/respondent

Interflora British Unit

Claimant/respondent

Marks and Spencer plc

Defendant/appellant

Procedural Posture

Trade Mark Infringement Appeal / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether M & S's use of 'interflora' and variants as Google AdWords keywords infringed Interflora's registered trade marks under Article 5(1)(a) and 5(2) of Directive 89/104 and Article 9(1)(a) and 9(1)(c) of Regulation 40/94.
  2. 2 Whether the advertisements enabled reasonably well-informed and observant internet users to ascertain the origin of the services.
  3. 3 Whether the High Court judge misapplied the test for the average consumer and the onus of proof.

Ratio Decidendi

The Court of Appeal held that the High Court judge erred in his approach to the test for the average consumer and the onus of proof, and that the legal standard requires assessment from the perspective of the reasonably well-informed and observant internet user, not a significant proportion of less-informed users. The judge's findings on confusion and the adverse effect on the origin function were undermined by procedural errors and misapplication of the legal test. The appeal was allowed and the case remitted for retrial.

Court Disposition

Appeal allowed; case remitted for retrial.

Orders

  • Set aside High Court judgment and orders.
  • Remit case to High Court for retrial on trade mark infringement.