In a recent judgment handed down by the by the Court of Justice of the European Union ("CJEU") the court stated that a trade mark will not necessarily be infringed if it is used as a keyword by a competitor. In this case, Interflora complained about Mark & Spencer's use of the INTERFLORA trade mark as a keyword in Google's AdWords service.
The court accepted that the INTERFLORA trade mark had acquired a significant reputation in the florist industry. As a result, the question that the court had to consider was whether Mark & Spencer's use of INTERFLORA caused detriment to the distinctive character of this trade mark.
In this regard, the test applied by the court was whether the reasonably well-informed and observant internet user, who are confronted with the display of an advertisement (as a result of the keyword), would be able to identify that the goods or services being displayed do not originate from the trade mark owner but from a competitor.
The court held that, if this is the case, the reputation associated with the trade mark will not be diluted. In fact, it was held that such conduct will simply provide the internet user with an alternative to the trade mark owner's goods and/or services.
In the circumstances it appears that this judgment indicates that, as long as it is clear from the advertisement that the goods and/or services are that of a competitor and not the trade mark owner, competitors may actually have a defence against allegations of infringement on the basis that their conduct amounts to fair competition.
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