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“Interflora v. Marks & Spencer”

First Council Directive 89/104/EEC of 21 December 1988 to Approximate the Laws of the Member States Relating to Trade Marks, Art. 5 – Interflora, Inc. and Interflora British Unit v. Marks and Spencer PLC and Flowers Direct Online Limited

  1. 1.

    The origin function of a trade mark is adversely affected by keyword advertising triggered by the trade mark if the advertisement does not enable reasonably well-informed and reasonably observant internet users, or enables them only with difficulty, to ascertain whether the advertised goods or services originate from the trade mark proprietor (or an economically connected undertaking) or from a third party.

  2. 2.

    The onus lies upon the advertiser to ensure that the advertisement does enable such users to ascertain this without difficulty and hence that there is no real risk of such users being confused.

  3. 3.

    It is not sufficient to establish an adverse effect that some internet users may have difficulty in grasping that the advertised goods or services are independent of the trade mark proprietor. Confusion on the part of ill-informed or unobservant internet users must be discounted.

  4. 4.

    If the advertisement causes a significant section of the relevant class of persons wrongly to believe that the advertised goods or services are connected to the trade mark proprietor, that does establish an adverse effect. Thus there is no single meaning rule.

  5. 5.

    In the context of the present case, it is relevant to consider whether the reasonably well-informed and reasonably observant internet user is aware that M & S’s flower delivery service is not part of the Interflora network and, if not, whether M & S’s advertisements enable such a user to ascertain this.

  6. 6.

    Keyword advertising is not inherently or inevitably objectionable from a trade mark perspective. Keyword advertising promotes competition.

  7. 7.

    The average reasonably well-informed and reasonably observant internet user is not particularly technically literate, does not know precisely how AdWords operates and is not aware of the issues of the case at hand.

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Decision of the High Court of Justice (Chancery Division) 21 May 2013 – Case No. HC08C03340. “Interflora v. Marks & Spencer”. IIC 44, 1001–1002 (2013).

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