The High Court has recently ruled in Interflora’s favour in its long-running dispute with Marks and Spencer (Interflora, inc and Interflora British Unit v Marks and Spencer plc and Flowers Direct Online Limited  EWHC 1291 (Ch)).
What is keyword advertising?
Keyword advertising is where a search engine (e.g. Google) is paid by an advertiser to display advertisements on its search engine results page when an internet user types in a search term.
The use of other companies trademarks are often used as keywords as they allow the advertiser to attract the attention of consumers who are familiar with their competitor’s brand and provides them with the opportunity to attract these consumers to their website and offer them an alternative product or service. This practice has been recognised by the courts as promoting competition.
Facts of the case
Marks and Spencer (M&S) had purchased the key word “INTERFLORA” in Google Adwords when advertising its own flower delivery service. “INTERFLORA” is a registered UK trademark and Community trademark owned by Interflora who operate a flower delivery network in the UK.
This meant that adverts for M&S’s flower delivery service were displayed when consumers typed “Interflora” into Google. The INTERFLORA mark was not visible in the M&S advertisements and was not used on the M&S website. The court found that a significant proportion of consumers then clicked on the M&S adverts apparently believing that the M&S flower delivery service was part of the Interflora network.
The High Court judgment
The High Court ruled that M&S had infringed Interflora’s trademark when it used the “INTERFLORA” mark as a keyword in its advertisements.
Mr Justice Arnold came to his conclusion essentially because the M&S advertisements did not enable a reasonably well informed and reasonably attentive internet user, or enabled them only with difficulty, to ascertain whether the service referred to in the advertisements originated from Interflora, a company in its network, or from a third party unconnected with Interflora’s network.
The ruling highlights that the onus is on the advertiser to ensure its adverts are clear as to the origin of the goods or services which it is advertising. Mr Justice Arnold found that M&S had failed to discharge their responsibility as it was not made clear that the M&S flower delivery service was not part of the Interflora network and was instead competing with it. There was nothing in M&S’s advertisements which would have allowed the consumer to distinguish the true relationship between M&S and the Interflora network.
While the ruling is to an extent particular to the facts of the case, businesses should review their existing, and carefully consider proposed new, Adwords, for potential trademark infringements.