The High Court has applied the ECJ's ruling on various questions it referred in proceedings brought by Interflora against Marks & Spencer (M&S) in relation to M&S's use of the word INTERFLORA as an advertising keyword leading Google internet search engine users to advertisements for M&S flower delivery services. The ECJ said that "double-identity" infringement would only be made out if there is an adverse effect on one of the functions of the trade mark. Arnold J found that M&S had infringed the trade mark under Article 5(1)(a) of the Trade Marks Directive (89/104/EEC, now replaced by consolidated Directive 2008/95/EC) and Article 9(1)(a) of the Community Trade Mark (CTM) Regulation (40/94/EEC, now replaced by 207/2009/EC) because a significant proportion of consumers who searched for "interflora", and then clicked on M&S's advertisements displayed in response to those searches, were wrongly led to believe that M&S's flower delivery service was part of the Interflora network, so that the mark's origin function was adversely affected. The judgment includes a detailed analysis of ECJ case law and establishes a number of interesting points, including clarifying the meaning of the "investment function" of a trade mark, substantial interference with which the ECJ found could constitute infringement of the mark. The decision that M&S had infringed Article 5(1)(a) and Article 9(1)(a) will be welcomed by Interflora. However, it is not clear to what extent other trade mark owners will be able to draw comfort from the decision, since it turned on its facts, in particular the fact that the Interflora network included numerous and diverse separate undertakings. (Interflora Inc and another v Marks and Spencer plc and another [2013] EWHC 1291 (Ch), 21 May 2013.)
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