In recent High Court proceedings, Interflora alleges that Marks and Spencer (M&S) has breached trade mark law over its sponsoring of the word "Interflora" as a search engine keyword. Interflora is seeking an unspecified sum in damages together with an injunction to prevent repetition of the alleged breach. Flowers Direct Online (Flowers Direct), a Morecambe based company who operate an internet flower delivery service throughout the UK, is named as second defendant.
The allegation accuses M&S and Flowers Direct of bidding for the words "Interflora", "Intaflora", and "Inter-flora" in Google's AdWords programme. This meant that when users searched for these terms, advertisments appeared for both M&S and Flowers Direct as "sponsored links."
Google used to operate a policy whereby it aimed to protect the trade marks of brand owners. However, on 5th May this year, it changed its policy, and now, almost any word appears to be available for sponsorship. Google does continue to attempt to control the content of any advertising material prompted by the input of the keyword.
Interflora stated in its submission to the court that where a user enters the term Interflora, or a similar spelling of it, it is the intention of that user to access the services of Interflora or one of its associated companies.
The allegation is that the activities of the defendants breach both sections 10(1) and 10(3) of the Trade Marks Act 1994. A breach of section 10(1) occurs where a party makes use of a sign which is identical to that of another's trade mark, in the course of trade, in relation to the provision of identical goods or services offered by the registered trade mark proprietor. A breach of section 10(3) occurs where the use of a sign, which is similar or identical to that of a trade mark proprietor without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the trade mark. Perhaps importantly, neither section requires proof of confusion.
In these proceedings, Interflora alleges that the defendants' use of its trade mark is detrimental as there will be a blurring or dilution which will lessen the capability of the trade marks to distinguish the goods and services of Interflora, from those of others. Similarly, in using the trade marks, the defendants are benefiting from the reputation of Interflora, and thus gaining an unfair advantage.
Interflora's marketing director has indicated that the company views its brand as its most valuable asset, and that this case marks the beginning of a long–term strategy to protect its IP rights.
A similar case came before the High Court in March 2008. The court ruled that Yahoo! had not infringed the rights of the proprietor of the "Mr Spicy" trade mark by displaying adverts by Sainsbury's and others, when the user entered the term into their search engine. The court ruled that only the word "spicy" was being sponsored, as opposed to the registered mark.