The High Court of England and Wales ended a five year legal battle between Marks & Spencer and Interflora yesterday. The court ruled in favor of flower delivery network Interflora, concluding that retailer Marks & Spencer breached trademark infringement laws by bidding on the keyword ”Interflora” in its Google AdWords campaigns.
In the European Union, Google allows bidding on trademarked keywords except when the ads are deemed to be misleading and “confusing as to the origin of the advertised goods and service.” Yesterday’s ruling finds Spencer & Marks in breach of that exception.
In the judgment, High Court Justice Arnold said that Marks & Spencer’s use of “Interflora” to advertise M&S’s own flower and gift website constituted trademark infringement. He said, the M&S text ads “did not enable reasonably well-informed and reasonably attentive internet users” to determine if the ads referred for M&S or Interflora. He further stated, ”On the contrary, as at 6 May 2008, a significant proportion of the consumers who searched for ‘interflora’ and the other signs, and then clicked on M&S’s advertisements displayed in response to those searches, were led to believe, incorrectly, that M&S’s flower delivery service was part of the Interflora network.”
This ruling is the culmination of the judgment passed by the European Union’s Court of Justice in 2011.
Both companies have the right to appeal. A spokesperson for Marks & Spencer said, ”We are disappointed by today’s judgment. As we are considering our position and all options available to us, it will be inappropriate for us to comment any further at this stage.”
Rhys Hughes, president of Interflora British Unit, said, “This ruling helps ensure that when consumers search on the internet for “Interflora”, they can be confident in knowing that the flowers bought online come from a member of the Interflora network.
The amount Marks & Spencer will be required to pay Interflora in damages and costs is expected to be determined in court later this year.