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Marks & Spencer’s hopes bloom anew

11 November 2014

The internet keywords case Interflora v M&S has come full circle with the Court of Appeal (CA) referring it back to the High Court for a re-trial.

This saga began in 2008, when M&S purchased ad-words which resulted in its floristry ads being displayed when a user searched for ‘interflora’ on Google. Interflora alleged trade mark infringement. At trial, Arnold J agreed.

The CA has held that the trial judge made errors which may have affected his finely balanced decision that a significant proportion of consumers were confused when clicking on the ads. Most significantly, Arnold J erred in reversing the burden of proof requiring M&S to demonstrate its ads didn’t risk confusing consumers. Instead Interflora had to prove M&S’s ads did not enable internet users, or enabled them only with difficulty, to ascertain whether the flowers referred to came from its network.

The ‘initial interest confusion’ doctrine was also under fire. The CA viewed this description as a “potentially misleading gloss” on the established tests.

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