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Fighting over flowers...

25 March 2011

M&S has purchased ‘interflora’ as an adword (a Google search for Interflora now displays an advertising link to M&S’ flower delivery service). Does M&S’ use of the word infringe Interflora’s trade mark rights?

The Advocate General has now provided an opinion in the case of Interflora v Marks & Spencer stating that a trade mark owner can forbid the use of a trade mark in such circumstances where the advertising link:

  • is liable to lead some members of the public to believe that the competitor is a member of the trade mark owner’s commercial network; and/or
  • displays or mentions the trade mark and the advertiser thereby attempts to benefit from its power of attraction, reputation or prestige

Surprisingly the Advocate General believes that the advertisement may confuse searchers in to believing that M&S is part of the Interflora network. If the court’s hypothetical searchers are so easily confused then adword purchasers will need to select their adverts very carefully.

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