Taking The St Michael? The CJEU Decision In Interflora v M&S

Marks & Spencer will be concerned that a finding of infringement may be the outcome when Interflora's claim against M&S for infringement of Interflora's mark INTERFLORA, used by M&S as a Google Adword, returns to the High Court following the CJEU decision handed down on 22 September. 

The CJEU has confirmed its decision from Google France that an advertiser who selects a competitor's trade mark as an Adword can be liable for "double identity" trade mark infringement if consumers are unable to determine whether the advertiser is economically linked to the trade mark owner.  It has also held that, in this case, the prospects of such confusion were greater because of the nature of Interflora's business, being a network of separate and widely varying retailers.  In addition, the CJEU has held, for the first time, that the use of a competitor mark as an Adword can also infringe by taking unfair advantage of the mark.