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Interflora wins five-year keywords legal battle in the High Court

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Interflora  today won victory against M&S in a court case centering on the use of competing brands in online search.

A High Court judge found in favour of the florist network, which claimed that Marks & Spencer’s use of the Interflora trade mark as a Google AdWord to advertise its M&S Flowers and Gifts website was trademark infringement.

The case was first brought in 2008, since when hearings have taken plae before the Court of Justice of the European Union and the UK Court of Appeal before coming back to the UK’s High Court for trial. The ruling may still be appealed by either side.

Mr Justice Arnold said: “The M&S advertisements which are the subject of Interflora's claim did not enable reasonably well-informed and reasonably attentive internet users to ascertain whether the service referred to in the advertisements originated from [M&S or Interflora]. 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."

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 Interflora brand stands for quality and service, a reputation we have been building, with our network of independent florists, since 1923."

A Marks & Spencer spokesperson said: “We are disappointed by today’s judgement. As we are considering our position and all the options available to us it would be inappropriate for us to comment any further at this stage.”

The judgement, said specialist lawyers from Withers & Rogers, agrees with an earlier consideration by the Court of Justice for the European Union, which stated that "the nature of the Interflora network may make it particularly difficult for the…internet user to determine, in the absence of any indication in the advertisement, whether Marks and Spencer’s service was part of the network or not."

Marisa Broughton, partner and trade mark attorney at Withers & Rogers, said: “The main issue is whether the internet user is able to identify the source of the services that are being advertised. The judge has taken the view that internet browsers may not know if Marks and Spencer’s website is operating as part of Interflora’s own network or not. This is the main reason given for trade mark infringement.

“Keyword advertising is still acceptable as long as it is clear who is providing the goods and services on offer and whether they are the trade mark owner or not.”

The trade infringement action, said Withers & Rogers, is widely regarded as a test case for the application of trade mark law online.
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