NEWS
CJEU rules on UK flower dispute
Te Court of Justice of the European Union (CJEU) has re-iterated its stance on Google AdWords in the Interflora v Marks & Spencer case, answering questions posed to it by the UK’s High Court.
Flower seller Interflora alleged that UK retailer Marks & Spencer had infringed its trademark by using the term ‘interflora’ in Google’s AdWords programme in order to get priority for an advert promoting its own floristry services. The advert in question contained no reference to Interflora, but that company argued that Marks & Spencer was nonetheless infringing, and was also free-riding on the reputation of its marks.
Te court followed its reasoning in Google France v Louis Vuitton to find that there was no problem with bidding on a trademarked word in AdWords as long as the advert makes the origins of the goods or services advertised clear and allows the Internet user to distinguish them.
Te court returned the case to the UK High Court, leaving it to decide whether Marks & Spencer’s advert enables Internet users to work out that the services do not come from Interflora. It will also need to decide whether Marks & Spencer is providing an alternative to Interflora’s services, or an imitation of them (the CJEU suggested that free-riding might occur with ‘imitation’ services’).
Interflora welcomed the decision, saying on its blog: “Tis judgment goes much further than previous rulings by saying that the use by a
competitor of a keyword identical to the trade mark in relation to identical goods or services has an adverse effect on the investment in the trade mark where that use substantially interferes with the brand’s reputation and its ability to attract and retain consumers. Further, a competitor may be construed as free-riding on a brand when that competitor uses the brand owner’s trade mark as a paid for keyword to deliver sponsored advertising alongside natural search results. Tis is exactly what Interflora and other global brands have been arguing for many years.” n
www.worldipreview.com
World Intellectual Property Review November/December 2011
9
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