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Consumers Can Testify in Interflora Trade Mark Dispute

InterfloraInterflora Inc. has been granted permission to call evidence from 13 members of the public in support of its case that Marks & Spencer Plc. has infringed its trade mark by ensuring that the retailer’s name pops up on computer screens when internet users type the word ‘Interflora’ into Google. Despite Marks & Spencer’s objections, the High Court ruled that the evidence of consumers could be of value in deciding whether there had been actual confusion on the part of members of the public.

Interflora claims that the effect of Marks & Spencer bidding for the right to use ‘interflora’ as a keyword on Google has been to increase its cost of advertising on AdWords by at least £1 million-a-year. The flower company also says that it has evidence that Marks & Spencer has made well over £1 million in sales of flowers to customers who had searched for Interflora on Google.

In pursuit of its case that Marks & Spencer’s activities have sewn confusion in the minds of consumers, Interflora’s solicitors had emailed more than 100,000 members of the public asking them to fill in a questionnaire. Through a process of whittling down, Interflora had obtained witness statements from 13 such witnesses which it sought permission to use in the proceedings.

Marks & Spencer, which denies trade mark infringement, objected to the admission of such evidence, criticising, inter alia, the manner in which it was obtained and the filtering process that had been employed in selecting witnesses. It was submitted that the evidence was in any event valueless.

However, allowing admission of the evidence, the court ruled that it could be of value in resolving the central issue as to whether members of the public had in fact been ‘confused in the real world’. Interflora had been open about the limitations of the evidence and had put forward ‘cogent and defensible’ reasons why it should be considered by the court.