Interflora v Marks and Spencer: Court of Appeal overturns keyword advertising ruling

What happened

Interflora runs a flower delivery network of independent florists. M&S, which runs its own flower delivery service, bid on "interflora" and similar terms as Google AdWords keywords, so M&S adverts appeared when people searched for Interflora. The High Court found this was trademark infringement because the adverts didn't let an average consumer tell M&S wasn't part of the Interflora network. M&S appealed, arguing the judge had got several points of law wrong, including who had to prove what, and how certain evidence was used.

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

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 a legal idea called "initial interest confusion" developed in US case law, which isn't part of EU or UK trademark law. On top of that, the judge had used evidence, including an expert's opinion that the judge had already ruled should be excluded, and a statistical report, in ways that couldn't properly support the findings made. Because the original decision was finely balanced and these errors were central to it, the court couldn't be sure the same result would have followed without them. Rather than decide the infringement question itself, it sent the case back for a fresh trial.

What we learned from this

• What I'd take from this is that bidding on a competitor's name as a search keyword isn't automatically unlawful. It depends on whether the adverts that result leave an average searcher unclear about who they're dealing with.
• If you're the trademark owner challenging a rival's keyword use, the burden is on you to prove consumers were actually confused, not on the advertiser to prove they weren't.
• Courts take evidential consistency seriously. If a judge excludes a piece of expert opinion, relying on it later in the same judgment can be a basis for appeal.
• A finding on confusion can be overturned even without the appeal court deciding the final answer itself. Here it went back for a full retrial.

Things to be aware of

The businesses involved

What others said about it

• CMS described the 2014 Court of Appeal ruling as the latest stage in a long running saga between the two retailers over keyword advertising.Source: Cms, November 2014
• RPC set out the underlying facts: Interflora's network of independent florists competing against M&S's own flower delivery service via Google AdWords.Source: Rpclegal, May 2013
• The IIC academic case note analysed the trademark law issues raised, treating the dispute as a significant test of keyword advertising principles.Source: Link
• Pinsent Masons' early report framed the case as Interflora, described as the world's largest flower delivery firm, suing M&S over sponsoring the word "Interflora" on Google.Source: Pinsent Masons, March 2009