The European Court has given a ruling in relation to M&S’s use of the word INTERFLORA as an advertising keyword leading Google internet search engine users to advertisements for M&S flower delivery services.

The court confirmed that third-party use of a mark as a keyword can be prevented if this takes unfair advantage of the distinctive character or repute of the trade mark (free-riding) or causes detriment to that distinctive character (dilution) or repute (tarnishment).

However, the Court adds a proviso that such use cannot be prevented if it offers an alternative to that proprietor’s goods or services, without offering a mere imitation of them, causing dilution or tarnishment, or adversely affecting the functions of the trade mark.

The most significant part of the judgment appears to be the court’s indication that “substantial interference” with the so-called “investment function” of a mark (that is, the purpose of acquiring and preserving a commercial reputation) constitutes infringement.

The true effect of this ruling on trade mark law in the UK will not be clear until the High Court comes to apply the guidance, as the ECJ has for the most part declined to comment on the application of these principles to the facts of the Interflora proceedings

Continue to watch this space!

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