Interflora v M&S – The Saga Continues

The 6 year legal battle between flower delivery giant Interflora and M&S has taken a new twist following the Court of Appeal's latest appeal ruling in the case (Interflora Inc & Anor v Marks and Spencer plc [2014] EWCA Civ 1403). The appeal was brought by M&S in an effort to overturn the decision reached at trial last May by Mr Justice Arnold who held that M&S had infringed Interflora's trade marks.

Background

Interflora originally brought its infringement claim against M&S in the High Court back in 2008. It had objected to M&S paying Google for the right to use the keyword "interflora" as a search term to help generate adverts promoting its own (i.e. M&S's) competing flower delivery service. As a result of M&S's actions, consumers using "interflora" as a Google search term were led to a search results page in which M&S's service was prominently advertised.

Interflora argued that M&S was infringing its very well-known Interflora trade mark and that it was unfair for M&S to use someone else's brand in this way to drive internet traffic to its own competing service. To add insult to injury, in order to stop M&S's advertising appearing higher up the search results page than their own, Interflora were forced to spend large sums of money "outbidding" M&S for the right to use their own name as a paid for keyword. Google, meanwhile, was laughing all the way to the bank.

The case has been very hard fought on both sides and a number of interim rulings have been made both before and since the trial. Indeed, prior to it reaching trial in 2013, there had already been several reported High Court decisions in Interflora including two trips to the Court of Appeal and a reference to the Court of Justice of the European Union (CJEU).

The CJEU had also, in the meantime, issued judgments in a number of other keyword advertising cases and in doing so has created a new test for infringement in such cases. According to the CJEU, there will be infringement if the keyword advertising "does not enable [average consumers] or enables them only with difficulty to ascertain whether the goods or services referred to in the advert originate from the [trade mark owner, a connected party]..or a third party."

At the trial, applying that test, the judge Arnold J narrowly found in Interflora's favour. In a substantial judgment running to over 300 paragraphs, he ruled that there had been an infringement of Interflora's trade mark by M&S through the use by M&S of the Interflora keyword.

However, M&S appealed the decision and on 5 November 2014, the Court of Appeal gave its judgment in the appeal - itself a lengthy affair running to 189 paragraphs spread over 69 pages!

The result of the appeal

In its...