Interflora and Marks & Spencer keyword battle

The European Court of Justice (ECJ) has given its preliminary ruling on the the questions referred to it by MR Justice Arnold concerning the use of a competitor’s trade mark as a keyword.

The ECJ ruled (amongst other points):

• a trade mark proprietor can prevent a competitor from using a keyword identical to their own trade mark to advertise goods or services identical to those covered by their trade mark where such use is liable to have an adverse effect on the functions of the trade mark: the ‘indicating origin’ function of a trade mark will be adversely affected if the advertising displayed as a result of the keyword does not enable an internet user to ascertain whether the goods or services advertised originate from the trade mark proprietor or a third party.
• the proprietor of a trade mark with a reputation is entitled to prevent a competitor from advertising on the basis of a keyword corresponding to that trade mark where the competitor takes unfair advantage of the distinctive character or reputation of the trade mark or where the advertising is detrimental to that distinctive character.

The first point is unsurprising – its what we’ve been seeing in the national court rulings. However, it will be interesting to see how broadly the second point is interpreted by the English courts.