Today’s Advocate General Opinion (AGO) in the case of Interflora vs Marks & Spencer (M&S) will be a welcome boost for brand owners seeking to protect their brand online.
The Advocate General has advised that the trademark owner is entitled to prohibit third parties from using protected terms as advertising keywords if there is a risk that internet users could be left uncertain about whom they are buying from.
Additionally, in particular to this case, there was a concern that the internet user may assume a link between M&S and Interflora on the basis that M&S were offering the same flower delivery service and could be assumed to be an approved member of Interflora’s network.
The decision is the latest in a series of cases seeking to clarify whether it is legal for companies to use the trade marks of leading brands in keyword advertising in order to drive sales of their own products and services.
In 2009, global flower retailer, Interflora, brought a trade mark infringement action to challenge M&S for bidding on its brand name as a Google Adword.
In their view, M&S should not be permitted to pay Google to promote its own flower business by advertising alongside search results for the word ‘Interflora’. The M&S link would appear directly below Interflora's in the search engine's ‘sponsored links’ section.
This outcome is good news for brand owners and should go some way to assist in clarifying the rules around the use of brands as keywords. We hope that the AGO is followed by the Court of Justice.