Interflora v Marks and Spencer: The Google Keyword Case That Set the Rules
When Marks and Spencer bid on the keyword "Interflora" on Google AdWords in May 2008, so that its own flower delivery adverts appeared when people searched for Interflora, it started one of the longest-running trademark disputes in the UK courts. Interflora v Marks and Spencer went to Europe's top court and back, produced nine UK rulings, and is still the case people reach for when they ask whether they can advertise against a competitor's name. If you buy paid search, or a rival is bidding on yours, these rulings are worth understanding before you register a trademark or send a complaint.
- The parties
- Interflora
- v Marks and Spencer
- UK rulings
- 9
- 2009 to 2014
- Courts involved
- Court of Justice of the EUCourt of AppealHigh Court
The keyword isn't the test. The advert is.
Who are Interflora and M&S?
Interflora runs a flower delivery network made up of independently branded member florists, and owns the INTERFLORA trademarks. Marks and Spencer runs its own flower delivery service alongside its retail business. The dispute was never about M&S using Interflora's name in the text of its adverts. It was about which adverts appeared when people searched for Interflora, and what customers made of them.
The key case: the Court of Appeal ruling
Interflora v Marks and Spencer
The High Court had found that M&S's adverts didn't let an average consumer tell that M&S wasn't part of the Interflora network. The Court of Appeal found the trial judge had wrongly put the burden on M&S to disprove confusion, when it's the trademark owner who has to prove it. The judge had also relied on "initial interest confusion", an idea from US case law that isn't part of UK or EU trademark law, and had used evidence in ways that couldn't properly support the findings. Because the decision was finely balanced and those errors were central to it, the court sent the case back for a fresh trial.
“What I'd take from this is that bidding on a rival's name isn't automatically infringement. The test is whether an ordinary internet user can tell, without difficulty, whose offer the advert is.”
What Europe's top court said
In September 2011, the Court of Justice of the EU answered the questions the High Court had sent it. Bidding on a competitor's trademark as a keyword can infringe where the advert doesn't let a reasonably well-informed and reasonably observant internet user tell, without difficulty, whether the goods or services come from the trademark owner, a business connected to it, or someone else. It also said that offering an alternative to the trademark owner's goods or services, without causing dilution or free-riding, is generally fair competition.
The rulings over time
Each badge describes that one ruling- 2009Interflora v Marks and Spencer · High CourtQuestions sent to EuropeProcedural ruling
- 2010Interflora v Marks and Spencer · High CourtQuestions narrowedProcedural ruling
- 2012Marks and Spencer v Interflora · Court of AppealHand-picked survey witnesses excludedDefendant won
- 2013Interflora v Marks and Spencer · High CourtGenuine customer witnesses allowedProcedural ruling
- Interflora v Marks and Spencer · High CourtKeyword adverts found to infringeClaimant won
- Interflora v Marks and Spencer · High CourtEU-wide injunctionClaimant won
- 2014Interflora v Marks and Spencer · Court of AppealInfringement finding overturnedSent back for a fresh hearing
- Interflora v Marks and Spencer · Court of AppealRetrial ordered, £1.1m repaidSent back for a fresh hearing
- Interflora v Marks and Spencer · High CourtNo ban pending the retrialDefendant won
How the case got to trial
Interflora v Marks and Spencer
The court sent its own questions to Europe rather than waiting for similar cases from other countries. It refused to stop M&S bidding on the keywords in the meantime, partly because Interflora had been slow to ask.
Read our summaryInterflora v Marks and Spencer
After the Google France ruling settled that Google itself wasn't liable for selling keywords, the court withdrew the questions about Google and kept those about M&S's own use.
Read our summaryMarks and Spencer v Interflora
Witnesses Interflora had picked from survey answers that suited its case were not admitted. The survey questions were leading, and evidence gathered that way has to show real value to justify its cost.
Read our summaryInterflora v Marks and Spencer
Thirteen genuine customers, found through an open process starting with an email to over 100,000 past customers, could give evidence about seeing M&S's advert when searching for Interflora.
Read our summaryThe trial and its result
Interflora v Marks and Spencer
M&S's keyword adverts were found to infringe, because they didn't let a reasonably well-informed internet user work out whether M&S's flower service was part of the Interflora network. Interflora's network of independently branded members made that confusion more likely. Its separate claims about unfair advantage and damage to its reputation failed.
Read our summaryInterflora v Marks and Spencer
A general injunction was granted. Because M&S hadn't shown its adverts left the trademark unaffected elsewhere, it covered the EU, not just the UK.
Read our summaryAfter the appeal
Interflora v Marks and Spencer
A second ruling settled the order: a full retrial before a different High Court judge, with the earlier trial costs left for that judge. M&S was to be repaid £1,100,000 it had paid under the original High Court order.
Read our summaryInterflora v Marks and Spencer
Interflora's request to stop M&S bidding on the keyword until the retrial was refused. The merits were too finely balanced for Interflora to show it was more likely than not to win.
Read our summaryThe December 2014 ruling is the last judgment in the case in our repository.
What I’d take from Interflora v Marks and Spencer
- 1What I'd take from this is that bidding on a rival's name isn't automatically infringement. The test is whether an ordinary internet user can tell, without difficulty, whose offer the advert is.
- 2Networks, franchises and partnerships raise the stakes. Where customers expect lots of businesses under one name, an unclear advert is more likely to suggest a connection.
- 3It's the trademark owner who has to prove confusion, not the advertiser who has to disprove it.
- 4Evidence is expensive and fiercely contested. Hand-picked survey witnesses were thrown out, while genuine customers found through an open process were allowed.
- 5A trial win isn't the end. The injunction, the costs and the money already paid were all unwound when the appeal succeeded.
Trademark monitoring can flag adverts and names that come too close to yours. If one needs challenging, our cease and desist service starts with whether a letter is the right move at all. Before you launch, a trademark consultation and clearance audit checks your name, and our representation service puts us on the record for you.
For our view on running competitor adverts, read Can You Bid on a Rival's Name and Say You're Cheaper?. For the brand owner's side, read Can You Stop Somebody Bidding On Your Brand Name?.
Book a free call, email enquiries@thetrademarkhelpline.com or ring 0161 833 5400.
Related questions
This page is for information purposes only and does not constitute trademark advice or guidance. Case summaries are drawn from published UK judgments; summaries drafted with AI assistance and checked by The Trademark Helpline (how we write these). Last reviewed 2 November 2026. Report an error.
