Interflora is at war with Marks & Spencer and Flowers Direct for allegedly infringing its trade mark name. Interflora is claiming that M&S sponsored the word “Interflora” as a keyword in Google’s AdWords programme and is now suing them in the High Court in London. When users searched for Interflora and related misspelt names, the rival company claims that M&S and Flowers Direct appeared as sponsored links beside the official search results.
In May 2008, Google altered its terms and conditions so that almost any word is available for sponsorship, although the text of the adverts that the keywords trigger is still controlled so that the trade marked term is not used.
Interflora is claiming that its competitors gained an unfair advantage by riding upon the fame of its trade marks. While M&S are surprised by the action, arguing that it is industry wide practice to do this and is not unlawful, the decision that the UK court may come to is uncertain. The dispute could set a precedent as to how UK trade mark laws will apply to keyword advertising in the future and may change the way that companies advertise on the internet.
It will be interesting to see whether the Court takes the view that M&S and Flowers Direct should be held liable for any possible infringement of Interflora’s trade mark, or whether in fact Google should be held responsible for allowing it. For the time being it appears that M&S and Flowers Direct have both removed the sponsored links from Google.
A decision not in Interflora's favour would arguably not sit well in the context of the rest of trade mark law given that the use of a third party's registered trade mark without their consent in other scenarios would be trade mark infringement. Furthermore, such a decision could impact on the value of having a registered trade mark at all for use on the internet if proprietors must then go on to pay large amounts of money to outbid competitors to stop advertising alongside themselves on internet searches.
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