Interflora v Marks & Spencer

Over the past few years, the use of trade marks on the internet has been a highly contentious subject in national courts across Europe.

Recently, the ECJ handed down its decisions in six of no less than eight references that have been made to it from national courts raising the question of how the Trade Marks Directive applies to the use of trade marks as "keywords", typically by means of the Google AdWords system.

One of these cases, Interflora v M&S is currently before the English High Court, and relates to M&S' use of the mark INTERFLORA as a keyword to advertise M&S' own flowers direct delivery service on Google's AdWords system. The Advocate General's delivered his opinion to the ECJ in March this year and this article considers that opinion, as well as the likely impact of that decision on advertisers and brand owners if it is adopted by the ECJ in its forthcoming judgment in this case.