UK: Interflora Wins Adwords War Of The Roses

Last Updated: 5 June 2013
Article by Beverley Potts, Nick Rose and Rebecca Swindells


The High Court has held that Marks and Spencer (M&S) infringed Interflora's trade marks when it bought keyword terms sold by Google which referenced "interflora" and advertised its own flower service on the back of them.

Mr Justice Arnold said that the CJEU has made it clear that "It is the responsibility of the advertiser to ensure that the advertisement is transparent as to the origin of the goods or services advertised in it".  The Judge then considered the case from the perspective of an "average consumer" who he decided would have been confused as to the origin of the services advertised by M&S.


Google operates an "Adwords" service whereby advertisers can pay for their adverts (or sponsored links) to be displayed on the top of the results screen when a user enters corresponding keywords into the Google search engine.

M&S purchased several keywords containing the INTERFLORA mark so that internet users searching using the INTERFLORA keyword were directed to an advert for the M&S online flower-delivery service.

The Court of Justice of the EU ("CJEU") was asked to determine whether Interflora could prevent M&S using INTERFLORA as an advertising keyword, even though that mark did not appear in the advertisement.

CJEU ruling

A full discussion of the CJEU ruling can be found here. To summarise, the CJEU held that use of a competitor's trade mark as a keyword:

  • was use in the course of trade in relation to goods and services but could only be prevented if it was liable to affect one of the functions of the trade mark. Whether there was an adverse effect on the origin function of the mark depended on the content of the advertisement. The advertisement has to enable a reasonably well-informed and observant internet user to easily discern whether the advertisement belonged to the trade mark owner or a competitor;
  • did not adversely affect the trade mark's advertising function simply because an alternative product was being offered. However, there could still be an adverse effect on the trade mark's investment function, which allowed a trade mark owner to "acquire or preserve a reputation capable of attracting consumers and retaining their loyalty";
  • may take unfair advantage of the reputation of a trade mark if, on the facts, the use could be considered to be without due cause; and
  • may dilute the distinctive character of a trade mark but not if consumers realise the competitor's advertisement is not related to the trade mark owner.

High Court Ruling

The case returned to the UK High Court for it to make a determination about whether there was a trade mark infringement on the facts of the case.

Was there an adverse effect on the origin function

At the direction of the CJEU, Mr Justice Arnold looked at 3 specific factors that were relevant to this assessment.

  1. He was not satisfied that it was (or is) within the general knowledge of the reasonably well-informed and observant internet user that the M&S flower delivery service is not part of Interflora's network.
  2. He did not think that the M&S adverts enabled the reasonably well-informed and observant internet user to discern that the M&S's flower delivery service is not part of the Interflora network. There is nothing in M&S's adverts to inform the user that the M&S service is not part of the Interflora network. The onus lies with the advertiser to ensure that there is no real of risk consumers being confused.
  3. He noted that key features of the Interflora network are that Interflora has commercial tie-ups with several larger retailers and that members of the Interflora network trade under their own names. This makes it all the more plausible that there should be a connection between M&S's flower delivery service and the Interflora network. 

Arnold J therefore concluded that the M&S advert did not easily enable the reasonably well-informed and reasonably attentive internet user to ascertain whether the service referred to in the advert originated from the trade mark proprietor or an unconnected entity. On the contrary, a significant proportion of the consumers who searched for "interflora" and then clicked on the M&S advert displayed in response, were led to believe, incorrectly, that M&S's flower delivery service was part of the Interflora network.  Thus the M&S use of the signs had an adverse effect on the origin function of the trade mark and there was infringement of the trade marks under s5(1)(a) of the Trade Mark Directive 89/104/EEC article 9(1)(a) of the Community Trade Mark Regulation 40/94/EC.

Was there an adverse effect on the advertising/ investment function?

Arnold J had difficulty understanding what the CJEU meant by "investment function" and how that differs from the "advertising function" of a trade mark. However, he thought that, if the third party's keyword advertising adversely affects the reputation of the trade mark, as for example where the image of the trade mark conveys is damaged, then there will be an adverse affect on the investment function.

On the facts, there was no effect on the investment function of the INTERFLORA trade mark because there was no adverse effect on the reputation of the mark, such as damage to Interflora's image.

Was there unfair advantage?

Arnold J noted that the CJEU has stated that selecting a trade mark with a reputation as a keyword is obtaining a real advantage from the distinctive character and repute of the trade mark, which will equate to an unfair advantage in the absence of due cause. However, the CJEU has also stated that, if the advertisement offers an alternative to the goods/ services of the proprietor without offering a mere imitation or causing dilution or tarnishment of the trade mark or adversely affecting the functions of the trade mark, then this use constitutes fair competition and is not without due cause. Arnold J commented that, by doing so, the CJEU has recognised an important limitation on the very broad principle set out in L'Oreal v Bellure ( see further here), which appears to involve balancing the interests of the trade mark proprietor with those of other economic operators.

In this case, he did not think there was infringement under article 5(2). The fact that Interflora could not "fight back" because it would not have been effective to purchase "marks and spencer" as a keyword was irrelevant and did not deprive M&S of due cause for its keyword advertising. However, he decided this on the assumption that there was no effect on the origin function of the trade mark.


It is not surprising that the Judge has found in Interflora's favour, given the particular nature of Interflora's services and network.  The CJEU had specifically suggested that the UK Courts should take into account the fact that Interflora's commercial network comprises a large number of retailers which vary greatly in terms of size and commercial profile.  In those circumstances the CJEU has said that it would be particularly difficult for the reasonably well-informed and reasonably observant internet user to determine whether the relevant advertisement is part of Interflora's network. 

The facts of this case therefore are at one end of the spectrum, and it will not necessarily lead to many more challenges from trade mark owners where rival adverts appear above their own links on Google's search engine.  It was common ground in the case that keyword advertising is not inherently or inevitably objectionable from a trade mark perspective.

In most instances, most businesses will continue to comply with the guidelines laid down by the CJEU that there needs to be an indication from the advertiser which enables the reasonably well-informed and reasonably observant internet user to determine whether or not the advertisement which is displayed in response to a search using the trade mark as a search term is connected to the business of the trade mark owner.

It is unclear at the time of publication whether M&S will appeal the decision. The level of damages payable will still need to be assessed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.