The UK High Court recently handed down its ruling on the Interflora versus Marks and Spencer (M&S) case. Justice Arnold found in favour of Interflora, specifically that M&S’s use of the Interflora trade mark as a Google Adword was trade mark infringement. M&S will no longer be able to buy advertising space on Google AdWords tied to Google keyword searches when ‘Interflora’ is entered.

This may increase the number of trade mark infringement cases in the United Kingdom against businesses who buy Google Adwords that place their ads above their competitors in results for Google keyword searches.

Interflora, Inc and Interflora British Unit versus Marks and Spencer plc

In 2008, Interflora began a trade mark infringement case against M&S. Interflora claimed that M&S had used its trade marked name as a keyword on Google, via the Google AdWords system.

Google Adwords

The Google AdWords system allows companies to buy advertising when specific words are entered into the search engine. The advertising labelled as a ‘sponsored link’ appears in a box above the search results. There is no limitation on whether the advertisement has any ties to any of the Google results.

M&S’s advertising found to be misleading

M&S had bought advertising so that a Marks and Spencer link would appear as a ‘sponsored link’ although there was no relationship between M&S and Interflora.

Interflora argued that the ‘sponsored link’ redirected business to M&S that would have gone to Interflora.

Mr Justice Arnold said: “A significant proportion of the consumers who searched for ‘Interflora’ and the other signs, and then clicked on M&S’s advertisements displayed in response to those searches, were led to believe, incorrectly, that M&S’s flower delivery service was part of the Interflora network.”

The High Court decision means that Marks and Spencer will no longer be able to buy advertising space on Google AdWords tied to Google keyword searches when ‘Interflora’ is entered.

Possible appeal

Marks and Spencer have the option to appeal the High Court decision. The court will decide damages and costs later in the year.

Google AdWords policy in Australia

Google no longer monitors or restricts keywords advertising in Australia, New Zealand, China, Hong Kong, South Korea, Taiwan, Brazil and Macau due to trade mark complaints.

This followed an Australian High Court finding that Google was not responsible for misleading use of the AdWords service where advertisers pay Google to display sponsored links in response to particular search terms.