Interflora wins Adwords War of the Roses
The High Court held on 21 May that Marks and Spencer (M&S) infringed Interflora's trade marks when it bought keyword terms sold by Google which referenced Interflora and advertised its own flower
The High Court held on 21 May that Marks and Spencer (M&S) infringed Interflora's trade marks when it bought keyword terms sold by Google which referenced Interflora and advertised its own flower service on the back of them.
Mr Justice Arnold said that the CJEU have made it clear that "It is the responsibility of the advertiser to ensure that the advertisement is transparent as to the origin of the goods or services advertised in it". The Judge then considered the case from the perspective of an "average consumer" who he decided would have been confused as to the origin of the services advertised by M&S.
It is not surprising that the Judge has found in Interflora's favour, given the particular nature of Interflora's services and network. The ECJ suggested that the UK Courts should take into account the fact that Interflora's commercial network comprises a large number of retailers which vary greatly in terms of size and commercial profile. In those circumstances the ECJ has said that it would be particularly difficult for the reasonably well-informed and reasonably observant internet user to determine whether the relevant advertisement is part of Interflora's network. The facts of this case therefore are at one end of the spectrum, and it will not necessarily lead to many more challenges from trade mark owners where rival adverts appear above their own links on Google's search engine. In most instances most businesses continue to comply with the guidelines laid down by the ECJ that there needs to be an indication from the advertiser which enables the reasonably well-informed and reasonably observant internet user to determine whether or not the advertisement which is displayed in response to a search using the trade mark as a search term is connected to the business of the trade mark owner.
Click here for a full analysis of this decision, as published on www.ffw.com
Mr Justice Arnold said that the CJEU have made it clear that "It is the responsibility of the advertiser to ensure that the advertisement is transparent as to the origin of the goods or services advertised in it". The Judge then considered the case from the perspective of an "average consumer" who he decided would have been confused as to the origin of the services advertised by M&S.
It is not surprising that the Judge has found in Interflora's favour, given the particular nature of Interflora's services and network. The ECJ suggested that the UK Courts should take into account the fact that Interflora's commercial network comprises a large number of retailers which vary greatly in terms of size and commercial profile. In those circumstances the ECJ has said that it would be particularly difficult for the reasonably well-informed and reasonably observant internet user to determine whether the relevant advertisement is part of Interflora's network. The facts of this case therefore are at one end of the spectrum, and it will not necessarily lead to many more challenges from trade mark owners where rival adverts appear above their own links on Google's search engine. In most instances most businesses continue to comply with the guidelines laid down by the ECJ that there needs to be an indication from the advertiser which enables the reasonably well-informed and reasonably observant internet user to determine whether or not the advertisement which is displayed in response to a search using the trade mark as a search term is connected to the business of the trade mark owner.
Click here for a full analysis of this decision, as published on www.ffw.com