Marks and Spencer's Use of INTERFLORA Trademarks as Google AdWords Is Held to Constitute Trademark Infringement by UK High Court

摘要

The High Court's decision in relation to Article 5(l)(a) is very fact specific. Infringement was found primarily because of the nature of the Interflora network-a large number of member florists (independent florists as well as supermarkets) each trading under their own brands. As it was not known generally that the M&S Flowers service was not part of the Interflora network, and it was not implausible, because of the nature of the network, that it could have been, in order to have avoided infringement Marks and Spencer would have needed to make this clear to Internet users in the advertisements displayed. But what does that mean for other brand owner versus competitor keyword advertising disputes? Each case will turn on its own facts (as Interflora v. Marks and Spencer did) but it is likely that the number of successful claims by brand owners will be small. When it is generally known to the Internet user that the competitor is a competitor, and the advertisement makes it clear that the goods and services concerned originate from such competitor, a finding of trademark infringement is unlikely.