The High Court has published its judgment in the long-running case of Interflora -v- M&S, which has featured a number of interim rulings that have affected the law on survey evidence.
The case itself revolves around the use by M&S of the word "Interflora" as a paid-for keyword search term on Google. This produces sponsored advert links to M&S's own flower delivery services in response to Google searches for "Interflora" . Interflora objected on the basis that M&S was unfairly using the goodwill and reputation built up in the Interflora brand to help build its own flower delivery revenues. Google Adwords have become enormously important in the world of marketing and advertising and are used by most businesses with an online presence these days.
The case has been up to the Court of Justice of the European Union (CJEU) and back. Following that ruling and some other rulings by the CJEU in a series of earlier Adwords cases (e.g. Google v Louis Vuitton, Portakabin etc), it was left to the High Court to try and make sense of these decisions and make a finding in the Interflora case.
To the surprise of many observers, Arnold J has held that M&S are liable for trade mark infringement, not for taking unfair advantage of Interflora's marks, but on the basis of straight "double identity" infringement under Article 5(1)(a) of the Trade Marks Directive (i.e. the use of an identical sign to the registered trade mark in relation to identical services). He held that the M&S keyword advertising did not make it sufficiently clear to the average internet user that there was no connection between M&S and Interflora.
In part this is a case that turns on its own facts because of the way that the Interflora business works (i.e. there is a network of florists who continue to trade under their own names but who are part of the Interflora network). However, Arnold J has again underlined how so-called "initial interest confusion" (where a consumer is initially confused into clicking on an internet link to a website but then having reached the website realizes that it isn't what they were after) can still amount to infringement.
Given the history of this case and the money at stake, Arnold J's judgment may well be appealed so this decision may not be the last word.
Click here for a full transcript of the judgement.
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