The Law Blog

Archive for March, 2011

Photo Courtesy of Interflora

The Advocate General Niilo Jaeaeskinen has conveyed his non-binding opinion on the on-going dispute between Interflora and Marks & Spencer at the European Court of Justice in Luxembourg.

Interflora, which was established in 1953 and has a network of nearly two thousand UK florists, is battling against Marks & Spencer’s use of the keyword search terms ‘Interflora’, ‘Intaflora’ and ‘Interflora Delivery’ to advertise its own products on Google.

Interflora put forward the following plea to the ECJ: “Where a trade mark owner such as Interflora has invested considerably in its trademark, and consumers rely on that trademark to guide their purchasing behaviour, should a competitor such as Marks & Spencer be entitled to trade off and make money from using Interflora’s trademarks at the expense of Interflora?”

The case could lead to retailers being forbidden from using any trademarked terms that they do not own to advertise online. Advertisements could, it has been suggested, confuse online users, and where this is the case, says Jaeaeskinen, there is just cause for legal proceedings.

In his statement, the Advocate General said: “An error concerning the origin of goods or services arises when the competitor’s sponsored link is liable to lead some members of the public to believe that the competitor is a member of the trademark proprietor’s commercial network when it is not. As a result of this the trademark proprietor has the right to prohibit the use of the keyword in advertising by the competitor in question.”

The ECJ verdict is expected in around six months’ time and, if the ruling goes Interflora’s way, European brand owners could be able to gain control over the use of their trademarks in search marketing, whilst also serving to further protect consumers against misleading online advertising.

Many hope that the outcome of the Interflora/M&S dispute will advance the ECJ’s March 2010 ruling in a case brought against search giant Google by luxury goods group LVMH Moet Hennessy Louis Vuitton S.A.

LVMH protested that Google’s ad policy violated trademark rules and purported that it served only to sponsor the online counterfeit goods market. Nevertheless, the ECJ ruled that where Google was simply selling its AdWords, the company wasn’t liable for trademark infringement, thus allowing companies to piggyback on the reputation of well-established, trusted names that have become synonymous with certain products or services.

This landmark case between Interflora and M&S should clarify legislation surrounding Internet advertising and serve to better protect brand owners’ right to maintain control of the trademarks they have worked so tirelessly to forge and promote.