In a case which has the potential to change the face of Internet advertising, the Court of Appeal has opened yet another chapter in the marathon struggle between Interflora and Marks and Spencer over the latter’s use of Google’s AdWords service.
The international flower delivery giants fiercely objected when a sponsored link to Marks and Spencer’s own flower service popped up on the first page of Google each time a potential customer typed in the word ‘Interflora’. Following lengthy litigation, which included a trip to the European Court of Justice, Interflora eventually won a High Court ruling that its UK and community trade marks were infringed by Marks and Spencer’s controversial use of the AdWords facility.
However, in upholding Marks and Spencer’s ‘forceful’ challenge to that decision, the Court of Appeal found that the judge had fallen into error by placing upon the retailer the burden of proving that its activities gave rise to no real risk of consumers being confused into the belief that its service was linked to the Interflora network.
The issues raised by the dispute were finely balanced and, despite recognising the enormous amount of time and resources already ploughed into the litigation by both sides, the Court ‘with regret’ declined to resolve the matter itself and sent the case back to the High Court for a fresh hearing.