Interflora v Marks & Spencer: High Court sends Google AdWords dispute to Europe

What happened

Interflora, which owns the INTERFLORA trademarks and runs a flower delivery network, found that Marks & Spencer had been bidding on "INTERFLORA" and similar terms as Google AdWords keywords. This meant M&S's own flower delivery adverts appeared when people searched for Interflora. Interflora sued for trademark infringement. M&S wanted the case paused while other, similar keyword advertising cases from other EU countries worked their way through the European Court of Justice first. Interflora wanted the case to move forward quickly, either with an immediate reference to Europe or a full hearing, and asked the court to stop M&S bidding on the keywords in the meantime.

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

The judge decided that guidance from the European Court of Justice would be needed eventually, but the cases already pending there from other countries might not cover everything this case raised, including claims about dilution (where use of a similar name damages a trademark's distinctiveness even without confusion) and a UK specific Google policy point. Rather than wait for those other cases, the judge made a fresh reference to Europe covering this case's own questions. The judge also refused to stop M&S bidding on the keywords while the case was paused, partly because Interflora had been slow to ask for that in the first place.

What we learned from this

• What I'd take from this is that a trademark dispute over online advertising can turn into a long procedural process through multiple courts before anyone decides who's actually right. Business owners bidding on a competitor's name as a search keyword can expect any legal challenge to take years, not months. If you want a court to stop ongoing conduct, it's worth checking you ask for that promptly, delay can count against you later.

Things to be aware of

The businesses involved

What happened next

• Following the European Court of Justice's guidance, the High Court ruled in May 2013 that Marks & Spencer had infringed Interflora's trademark by bidding on the keyword, according to The Guardian.Source: Theguardian, May 2013

What others said about it

• D Young & Co's recap of the eventual 2013 trial shows the case turned on whether ordinary internet users could tell the difference in origin between the advertised flower delivery services.Source: D Young & Co, July 2013
• Jones Day noted the Court of Appeal's 2014 decision unanimously overturned the earlier infringement finding, showing how unsettled this area of law remained even years after the original reference.Source: Jones Day, September 2019