Interflora v Marks and Spencer: court narrows questions sent to Europe over Google keyword adverts

What happened

Interflora, which runs a flower delivery network of independent florists, sued Marks and Spencer after M&S bought "Interflora" as a Google AdWords keyword. This meant M&S's own flower delivery adverts showed up when people searched for "Interflora". The judge had already sent ten questions to the Court of Justice of the European Union (CJEU) about whether this kind of keyword advertising breaks trademark law. Before answering, the CJEU decided a related case, Google France, and asked the English court to confirm which of its ten questions it still wanted answered.

What did the court decide in Interflora v Marks and Spencer?

The court withdrew questions 5 to 10, which were about whether Google itself could be liable for selling the keyword. Both sides agreed the Google France ruling had already settled that point in Google's favour, so there was nothing left to ask. The court kept questions 1 to 4, which were about whether M&S's own use of "Interflora" as a keyword counted as trademark "use" at all, and whether that use fell within the EU trademark law provisions covering identical and well known marks. The court felt the scope of those provisions, and how they fit together with an earlier case called L'Oreal v Bellure, still needed clarifying by Europe.

What we learned from this

• What I'd take from this is that a single headline dispute can involve several rounds of entirely procedural decisions before you get anywhere near a substantive answer, and this ruling was one of those rounds.
• If a dispute touches on EU-derived trademark law from this period, expect delay while questions get sent to and clarified with the CJEU, even for cases that feel urgent commercially.
• Watch how quickly the legal landscape can shift mid case. A related ruling, here Google France, can knock out whole strands of your argument before your own case is even decided.
• The parties here agreed to drop half the referred questions once Google France came out. It's worth checking regularly whether new rulings elsewhere have already answered points you're arguing about.

Things to be aware of

The businesses involved

What happened next

• The dispute began when Interflora sued M&S at the High Court over M&S's sponsoring of the word 'Interflora' as a Google keyword to trigger its own ads.Source: Pinsent Masons, March 2009
• The High Court later ruled, in a subsequent judgment, that M&S's use of 'Interflora' as a keyword to advertise its florist service amounted to trademark infringement.Source: The Guardian, August 2013
• M&S argued it would be costly and pointless for Interflora to bid on 'marks and spencer' while it could instead bid on more targeted terms such as 'marks and spencer flowers'.Source: Practical Law (Thomson Reuters), May 2013
• The litigation continued for years after this ruling, with a further Court of Appeal judgment handed down in 2014.Source: Cms, November 2014

What others said about it

• RPC's summary frames the dispute as a direct clash between Interflora's florist network and M&S's own competing flower delivery service, the commercial backdrop to every later ruling.Source: Rpclegal, May 2013