Marks & Spencer’s (M&S) use of Google AdWords infringed florist network Interflora’s trademark, according to the Advocate General of the European Court of Justice (ECJ), Niilo Jääskinen.
An ECJ ruling on the case will be made in a few months’ time, and if the decision is in favour of Interflora there could be huge ramifications for the whole of the online advertising sector.
Interflora initiated litigation proceedings last year after M&S purchased its rival’s name as a Google AdWord, which meant that when an internet user typed ‘Interflora’ into the search engine an advert for M&S Flowers appeared.
Commenting on the case, Partner at Marks & Clerk Solicitors Kirsten Gilbert said: “The Advocate General considers that use of a rival trademark as a Google AdWord constitutes trade mark infringement where the consumer is unable to determine whether or not the advert is for the brand they originally searched for.
“While online consumers are much more informed than 15 years ago, rivals should shy away from using each other’s trademarks for their own commercial purposes where doubt or ambiguity as to the origin of the goods or services could arise.”
Even though the ECJ ruled last year that Google was not liable for trademark infringement by selling AdWords to rival companies, the search engine firm could feel the impact of any decision made in favour of Interflora in other ways.
“Although not represented in this legal battle, Google is still directly affected – the AdWord service is a major source of revenue for the California-based corporation,” Gilbert added.
“With this opinion, Google’s customers may well reconsider how extensively they want to use a competitor’s mark as an AdWord.”
Marketing Director at Interflora Michael Barringer said in a statement yesterday that its network of independent florists is taking legal proceedings in order to protect the brand’s image.