Interflora vs M&S – Full Judgement
Here is the September 22nd 2011 European Court of Justice ruling on the Interflora vs M&S ‘Brand Bidding’ case.
My (amateur) summary is:
- To me, the untrained amateur, the judgement looks better for M&S than it is for Interflora. (also better for other companies who bid ‘fairly’ against their competitors’ brands)
- They have essentially passed this back to the UK courts, with some guidance.
- It may leave open ramifications if a brand were to tell their resellers (rather than competitors) to avoid PPC ads on their brand terms. But I can’t see any brand testing that.
I think these are the pivotal pieces:
“if the referring court were to conclude that the advertising triggered by virtue of M & S’s use of the sign identical with the INTERFLORA trade mark did enable the reasonably well-informed and reasonably observant internet user to tell that the service promoted by M & S is independent from that of Interflora, Interflora could not successfully argue, relying on the rules in Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94, that that use has contributed to turning the trade mark into a generic term.”
“where the advertisement displayed on the internet on the basis of a keyword corresponding to a trade mark with a reputation puts forward – without offering a mere imitation of the goods or services of the proprietor of that trade mark, without causing dilution or tarnishment and without, moreover, adversely affecting the functions of the trade mark concerned – an alternative to the goods or services of the proprietor of the trade mark with a reputation, it must be concluded that such use falls, as a rule, within the ambit of fair competition