Mr Justice Arnold handed down his judgment in Interflora, Inc and Interflora British Unit v Marks and Spencer plc and Flowers Direct Online Limited [2013] EWHC 1291 (Ch) on 21 May. His main ruling is that Marks and Spencer has infringed the Interflora trade marks by its use of ‘Interflora’ as a Google Adword. He concluded (at [318]):
‘Taking into account the factors mentioned by the CJEU, the factors relied upon by Interflora and the factors relied upon by M & S, the conclusion I have reached is that, as at 6 May 2008, the M & S advertisements which are the subject of Interflora’s claim did not enable reasonably well-informed and reasonably attentive internet users, or enabled them only with difficulty, to ascertain whether the service referred to in the advertisements originated from the proprietor of the Trade Marks, or an undertaking economically connected with it, or originated from a third party. 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. Thus M & S’s use of the Signs had an adverse effect on the origin function of the Trade Marks. Furthermore, I conclude that this is still the case even now. It follows that M & S has infringed the Trade Marks under Article 5(1)(a) of the Directive and Article 9(1)(a) of the Regulation.’
This judgment marks the conclusion of the trial of a legal case that began in 2008 and involved hearings before the Court of Justice of European Union and the UK Court of Appeal before finally returning to the High Court for trial. The judgment appears, on a very rapid read at least, to turn on evidence arising from very detailed analysis of consumer behaviour and the judge’s considered view on general consumer awareness of the phenomenon of keyword advertising, and in particular of the distinction between the paid advertisements and the natural search results. While Arnold J had no doubt that the majority of Internet users appreciate the distinction, he came to the conclusion that ‘even now a significant proportion of internet users in the UK do not’.
The full judgment is available for download from the panel opposite.
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. Keyword advertising is a very powerful tool and so it is vital for consumer protection that internet search results take consumers directly to the brands they are looking for.’
The judgment means that Marks and Spencer cannot bid on the trade marked term “Interflora” in the Google AdWords programme.
The case will return to court later in the year to determine how much Marks and Spencer must pay Interflora, Inc. and Interflora British Unit by way of damages and costs. Each party may seek permission to appeal.
