Interflora’s battle to prevent Marks & Spencers (“M&S”) from allegedly ‘piggy-backing’ its advertisements onto Google searches for the flower retailer’s name has moved to the European Court of Justice. We previously reported on the Court’s ruling in the Louis Vuitton case which held that Google, in providing its AdWords service, does not directly infringe third party trade marks.
The Interflora case is also based around the AdWords service but there are two important differences in this case:
- This action is against a direct competitor, M&S, which had paid for a number of keywords in relation to the INTERFLORA trade mark, as opposed to Google which is providing the service.
- Interflora is facing a loss of revenue, as opposed to Louis Vuitton which was seeking more control over its brands.
The practice of paying to have a sponsored link attached to a competitor’s trade mark has been likened to the other methods of ‘ambush marketing ’, which are common in the world of advertisements at sporting events. Supporters of this practice have argued that this method of advertising is healthy for competition and ultimately benefits the consumers. However, opponents argue that it is an unacceptable infringement on the goodwill of registered trade marks and could potentially damage the reputation of a brand name.
This decision will have a significant impact on the manner in which online advertising is conducted. If Interflora is successful in its challenge, it may encourage other retailers in similar situations to seek to protect their brands. A victory for M&S, however, could encourage companies to purchase internet search based advertising relating to their competitors brands, without fear of infringing their intellectual property rights.
For further information please contact David Cullen or Leo Moore of our Technology department
