Interflora -V- Marks & Spencer AdWords Case Goes to Retrial

Readers may recall that since 2008 Interflora has been engaged in legal proceedings against Marks & Spencer, concerning the latter's activity of bidding on the word "Interflora" via Google's AdWords service.

Interflora regard Marks & Spencer's activities as constituting registered trade mark infringement. The latter denies this to be the case.

After a referral on various points of law to the Court of Justice of the European Union, at first instance the English Court held that Marks & Spencer's activities did constitute registered trade mark infringement. This was because the Marks & Spencer ("M&S") advertisement revealed when members of the public typed "Interflora" into Google did not enable reasonably well-informed and reasonably observant internet users to tell that the flower-delivery service offered by M&S did not originate from Interflora.

However, in December 2014 the English Court of Appeal allowed M&S's appeal, holding that the trial judge had made important legal errors that required the appeal Court to order a retrial of the case. In particular, they held that he had applied the wrong legal test when assessing infringement and he had wrongly reversed the burden of proof, so that M&S had to prove non-infringement, rather than Interflora prove infringement.

Following the appeal Court's decision, Interflora applied to the Court for an interim injunction, pending the retrial, so that M&S could not continue the acts of which Interflora complained. After hearing argument from the parties, the Court rejected Interflora's application. The case will now proceed to a retrial, which will probably be heard later this year.

And so the (now 6 years old) legal saga continues. Perhaps by 2016 we might know who won….but don't hold your breath.

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