Interflora v Marks and Spencer: court allows real customer witnesses in keyword ad dispute

What happened

Interflora and Marks and Spencer were fighting over whether M&S's decision to bid on "Interflora" as a Google AdWords keyword, so its own flower delivery ad appeared when people searched for Interflora, infringed Interflora's trademark. As part of building its case, Interflora emailed over 100,000 past customers, then used phone screening and interviews to find 13 people who said they remembered seeing M&S's sponsored ad when searching for Interflora. M&S argued this evidence ought to be excluded, pointing to an earlier ruling in the same case where a different, flawed survey exercise had been rejected. Interflora asked the court for permission to use the 13 witness statements at trial.

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

The court held this evidence was different from the earlier rejected material. These were genuine customers recalling something they had actually experienced when searching online, not artificial reactions produced by a flawed experiment. The court found the whole process, from the mass email to the final interviews, had been fully disclosed and was transparent. It accepted the evidence might carry some weight at trial, though it did not say how much, and that the roughly £92,000 spent gathering it was justified given its likely value. Permission was granted to use all 13 statements.

What we learned from this

• What I'd take from this is that courts will often allow real customer evidence if the process used to find those customers is open and honest, even when there's no formal survey behind it.
• If you're trying to prove customers were actually confused by a competitor's advertising, it's worth keeping a full record of how you identified and approached every witness.
• A proper, transparent process matters more than scale. One flawed survey earlier in this same case had already been thrown out.
• Gathering this kind of evidence costs money. Here it was around £92,000, so it's worth weighing that cost against how much the evidence is likely to help before committing to it.

Things to be aware of

The businesses involved

What happened next

• The underlying infringement dispute, of which this witness evidence ruling formed part, resulted in the High Court ruling in Interflora's favour in May 2013.Source: Theguardian, May 2013
• That 2013 trial decision was later overturned on appeal, with the Court of Appeal in 2014 ultimately ruling in favour of Marks and Spencer.Source: Lawyerz

What others said about it

• IPKat noted the case arose from the Court of Appeal's earlier scrutiny of survey evidence reliability, a backdrop that shaped how this later witness evidence had to be gathered.Source: IPKat, November 2012