Interflora Inc & Anor v Marks and Spencer Plc (Rev 1)

Interflora Inc & Anor v Marks and Spencer Plc (Rev 1)

The Court of Appeal held that the High Court judge erred in law by misapplying the average consumer test, wrongly reversing the burden of proof, and relying on inadmissible or irrelevant evidence, including the doctrine of initial interest confusion. The correct legal test requires the trade mark proprietor to prove that the advertisement does not enable reasonably well-informed and observant internet users, or enables them only with difficulty, to ascertain whether the goods or services originate from the trade mark proprietor or a third party. The errors were material and affected the outcome. The appeal was allowed and the case remitted for retrial.

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
Civil Appeal / Appeal From High Court to Court of Appeal
Outcome
Appeal allowed; case remitted for retrial
Legal Topics
Trade Mark Infringement, Keyword Advertising, Google Ad Words, Likelihood of Confusion, Burden of Proof, Initial Interest Confusion, Injunctive Relief, Community Trade Mark, Article 5(1)(a) Directive 89/104, Article 9(1)(a) Regulation 40/94
Intellectual Property Trade Marks Competition Law Trade Mark Infringement Keyword Advertising Google Ad Words Likelihood of Confusion Burden of Proof +5 more

Case Brief

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Parties

Interflora Inc

Claimant/respondent

Interflora British Unit

Claimant/respondent

Marks and Spencer plc

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From High Court to Court of Appeal

Legal Issues

  1. 1 Whether Marks and Spencer's use of 'interflora' and variants as Google AdWords keywords infringed Interflora's registered trade marks under Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation 40/94.
  2. 2 Whether the High Court judge applied the correct legal test for the average consumer and the burden of proof in trade mark infringement cases involving keyword advertising.
  3. 3 Whether initial interest confusion is relevant to infringement under Article 5(1)(a).

Ratio Decidendi

The Court of Appeal held that the High Court judge erred in law by misapplying the average consumer test, wrongly reversing the burden of proof, and relying on inadmissible or irrelevant evidence, including the doctrine of initial interest confusion. The correct legal test requires the trade mark proprietor to prove that the advertisement does not enable reasonably well-informed and observant internet users, or enables them only with difficulty, to ascertain whether the goods or services originate from the trade mark proprietor or a third party. The errors were material and affected the outcome. The appeal was allowed and the case remitted for retrial.

Court Disposition

Appeal allowed; case remitted for retrial

Orders

  • The appeal is allowed.
  • The High Court judgment is set aside.