Interflora heartened in AdWords trademark battle with M&S

Companies could be stopped from using rivals’ trademarks in their Google AdWords’ campaigns if the European Court follows an opinion delivered on Interflora’s battle with Marks & Spencer.

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Interflora is “encouraged” by the opinion delivered by advocate general Niilo Jaaskinen in regard to the use of the flower seller’s trademark in a Google AdWord campaign by M&S.

The advocate general handed down his opinion in answer to the question posed by Interflora to the European Union Court of Justice (ECJ). The flower delivery service asked whether M&S Flowers or other competitors should be allowed to use the “Interflora” trade mark as a Google AdWord.

The Advocate General says that a trade mark owner can stop the use of its trademark by a rival where the online ad “does not enable an average internet user, or enables the said user only with difficulty, to ascertain whether the goods or services referred to in the ad originate from the proprietor of the trade mark or an undertaking economically connected to it or from a third party.”

The opinion is not binding and a final judgment is expected from the ECJ within six months. The case was first referred to the ECJ by the High Court in London in 2009.

Last year the European Court of Justice ruled in favour of Google after luxury brand Moét Hennessey Louis Vuitton claimed Google’s AdWords service undermines brands and breaches European trademark law by allowing rival advertisers to purchase trademarked keywords.

Kirsten Gilbert, partner at Marks & Clerk Solicitors, says: “Interflora will be the victor if today’s recommendations are followed. The Advocate General considers that use of a rival trade mark as a Google AdWord constitutes trade mark infringement where the consumer is unable to determine whether or not the advert is for the brand they originally searched for.

“Last year’s Google case established that purchasing a rival’s brand name as an AdWord is not trade mark infringement per se. But while online consumers are much more informed than fifteen years ago, rivals should shy away from using each other’s trade marks for their own commercial purposes where doubt or ambiguity as to the origin of the goods or services could arise.”

A Google spokesperson says that last year’s ruling made clear the company has not infringed trade mark law by allowing advertisers to purchase keywords corresponding to their competitors’ trade marks and adds: ” We believe that user interest is best served by seeing more relevant ads, ensuring useful and informative advertising for a wide variety of different contexts. We also believe that consumers are smart and are not confused when they see a variety of ads displayed in response to their search queries. This latest opinion is broadly consistent with the CJEU’s decisions last year.”

Interflora says that it is “very encouraged” by the findings which could strengthen consumer protection if it becomes law.

M&S is declining to comment while it considers the Advocate General’s opinion.

Interflora launches its first television campaign for a quarter of a century today (24 March) ahead of Mother’s Day. Supporting activity includes outdoor, online and direct marketing.

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