The “long war of attrition” between Interflora and Marks & Spencer has finally come to an end, with the High Court ruling that the retail giant had infringed the ‘Interflora’ trade mark by using it to promote M&S flowers on the internet.
The background to this dispute is set out in our previous legal update Court of Appeal overturns High Court decision in Interflora v Marks & Spencer.
Following M&S’s successful appeal against the High Court’s decision to allow Interflora to adduce witness evidence obtained as a result of a survey, Arnold J was left to determine whether, from his own experience and without evidence from consumers, there had been trademark infringement.
Arnold J was required to consider the issue “in context from the perspective of the reasonably well-informed and reasonably observant internet user”.
In his judgment, Arnold J stated “I must be careful not to consider the issues in this case from my own perspective, namely that of an experienced and technically literate internet user who knows precisely how Google AdWords operates and is aware of the issues.” He then went on further to state that “the average reasonably well-informed and reasonably observant internet user is not particularly technically literate, does not know precisely how AdWords operates and is not aware of the issues.”
Having applied this test, Arnold J concluded that the relevant advertisements by M&S did not enable the reasonably well-informed and reasonably observant internet users to ascertain whether those advertisements originated from Interflora or M&S.
Although, to most, this decision may not come as much of a surprise, it will be interesting to see how the Court attempts to quantify Interflora’s loss when it comes to decide upon the remedy later this year.