Marks & Spencer did infringe the trademark of Interflora as a Google adword, the Advocate General has ruled.
The ruling was a non-binding opinion, and is still to be followed by Niilo Jääskinen, the advocate general’s ruling in the coming months, having referred the questions to the European Court of Justice (ECJ) in 2009 following a legal battle between the two companies. This began with Interflora accussing M&S of buying its trade mark as a Google AdWord, meaning that whenever ‘Interflora’ in Google, an M&S advert would appeal.
Interflora claimed that this was in breach of its trademark rights.
Commenting on the ruling, Kirsten Gilbert, partner at Marks & Clark Solicitors explained that the Advocate General had made it clear that the use of a rival trade mark as a Google AdWord was trade mark infringement when the consumer is unable to tell whether the advert is for their original brand search.
“Last year’s Google case established that purchasing a rival’s brand name as an AdWord is not trade mark infringement per se. But while online consumers are much more informed than fifteen years ago, rivals should shy away from using each other’s trade marks for their own commercial purposes where doubt or ambiguity as to the origin of the goods or services could arise.”
Gilbert added that Google would still be affected by the decision, despite not being represented in this case.
“The AdWord service is a major source of revenue for the California-based corporation. With this opinion, Google’s customers may well reconsider how extensively they want to use a competitor’s mark as an AdWord,” concluded Gilbert.