News Item

Interflora High Court decision on Google AdWords

12 June 2009

The High Court has given a decision on the question of Google AdWords in a case brought by relay flower network, Interflora, against Marks & Spencer (M&S) and Flowers Direct. By the time of the hearing of the dispute, Interflora had reached an agreement with Flowers Direct and Interflora’s claim only continued against M&S. M&S have been using the trade mark INTERFLORA (and various misspellings) as a Google AdWord to promote their website offering customers flower delivery services.

Interflora applied to the Court for an interim injunction to prevent M&S from continuing to use the INTERFLORA trade mark in this way. The Court refused to grant the injunction and referred the question on the use of trade marks as AdWords to the European Court of Justice (ECJ). In taking this decision, the High Court has followed many of the other national courts in the EU. There are now a series of questions before the ECJ that, when answered, should help clarify the legal position on use of a competitor’s trade marks as sponsored keywords.

Some of the earlier cases referred to the ECJ should be decided well before the questions in the Interflora case are considered. The Interflora case may therefore be determined after these earlier decisions are given, and the High Court has granted the parties the right to come back to Court if this happens.

The exact form of the questions referred to the ECJ is not yet known. The parties are concerned that every aspect of their dispute is covered as the decisions of the earlier cases referred to the ECJ may not fully address all the issues. The reason for concern is that the policy adopted by Google at the time of the earlier referrals was different in the UK and Ireland to the rest of Europe.

Interflora also asked the Court if it would order M&S not to use the AdWords while the parties waited for the decision from the ECJ. The Court declined to do this.

Brand owners will continue their anxious wait for the decisions from the ECJ, in the hope that the legal position on the use of trade marks as sponsored keywords will be clarified once and for all.

If you have any questions about the use of trade marks as sponsored keywords, contact your usual Marks & Clerk attorney or Kirsten Gilbert at kgilbert@marks-clerk.com.