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Internet ‘Keyword Advertising’ Infringed Interflora Trade Marks

In a ruling of significance to all internet advertisers, the Interflora flower delivery network has achieved a qualified victory in a trade mark infringement claim against Marks and Spencer Plc. (M&S) in respect of the latter’s purchase of the right to use the ‘Interflora’ name as a key word on internet search engine, Google.

Interflora objected to a ‘keyword advertising’ or ‘pay per click’ arrangement whereby M&S paid Google to display advertisements for the retailer’s flower delivery service on the search engine’s results page whenever an internet user employed Google to search for the word ‘interflora’ or similar terms.

In finding that the arrangement infringed Interflora’s trade marks, the court ruled that a significant proportion of reasonably well-informed and attentive internet users who searched for the word ‘interflora’, and then clicked on M&S advertisements displayed in response to those searches, were led to believe, incorrectly, that M&S’s flower delivery service was part of the Interflora network.

The way in which the M&S advertisements were displayed had an adverse effect on the origin function of the trade marks in that it did not enable reasonable internet users, or enabled them only with difficulty, to ascertain whether the service referred to in the advertisements originated from the proprietor of the trade marks.

However, the court went on to rule that there was no evidence that M&S’s keyword advertising had had an adverse effect upon the reputation of the trade marks, such as damage to Interflora’s image. The court was also unpersuaded that M&S had deliberately taken unfair advantage of the distinctive character and repute of the trade marks.

Interflora had pointed out that the growth in M&S’s flower business since May 2008 was roughly equal to the decline in Interflora’s revenue over the same period. However, the court rejected Interflora’s plea that this was evidence that there had been no organic growth in M&S’s flower business and that it had merely traded off Interflora’s goodwill and reputation. M&S contended that internet users who searched for the word ‘interflora’ and then clicked on M&S advertisements were not confused but had simply ‘changed their minds’.

Putting himself in the position of a reasonably well-informed and observant internet user, Mr Justice Arnold concluded: “I have no doubt that the majority of consumers who click on M&S advertisements do so because they have been persuaded to take their custom to M&S and not because they believe that M&S is part of the Interflora network. That does not exclude the possibility that a significant proportion of consumers do believe that there is a connection, however.”