UK: Interflora Pours Weedkiller On Key Words

Last Updated: 20 June 2013
Article by Ian Wood and Vanessa Barnett

In Brief

On 21 May 2013, Interflora obtained judgment in the High Court in London against Marks & Spencer ("M&S") for use of Interflora's registered trade marks as a Google AdWord.

In essence the judgment says that M&S infringed Interflora's trade marks because, having purchased from Google certain keywords containing "interflora", in its advertisements which came up on a Google search using those keywords, M&S failed to make clear to internet users that the M&S flower delivery service had no connection with Interflora. A significant proportion of internet users were led to believe that M&S's flower delivery service was part of the Interflora network.

A further hearing on the level of damages payable by M&S will take place. This may not be the end of this long running dispute between the parties; M&S may well decide to appeal the decision.

The effect of the ruling is that, if a third party's trade mark is used as an AdWord, the advertisement must make clear that it does not originate from (nor is it economically connected with) the trade mark owner, and the onus is on the advertiser to do this. How this will work in practice remains to be seen. It should be noted that the judgement does not prevent the use of third parties' trade marks as Google AdWords in the UK (and, since M&S did not attempt to defend the claim by contending that its advertisements were comparative advertising, does not deal with the issue of trade mark use in comparative advertising, whether on the internet or otherwise).

The issue of the use of trade marks as keywords still varies considerably between jurisdictions, even within the European Union.


The claimants, Interflora Inc and Interflora British Unit (together "Interflora"), operate the well known online flower delivery service which enables orders for flowers to be placed over the Internet. Interflora Inc. is the registered proprietor of two registered trade marks:

  • UK registered trade mark INTERFLORA (UK No. 1329840) in respect of various goods and services relating to plants and flowers, including advertising services for florists, information services for sale of flowers and transportation of flowers; and
  • Community Trade Mark INTERFLORA (CTM No. 909838) for various goods and services including for plants and flowers, advertising services for florists, transportation of flowers and information services for the sale of flowers (both the "Trade Marks").

The defendant, "M&S", operates an online flower delivery service through the M&S website.

Google's AdWords service

Google operates the well-known internet search engine, one of the most popular websites in the UK. Google's main source of revenue is from advertising and the principal way in which Google provides advertising is via its AdWords service. This works as follows:

  • An advertiser can purchase (or "bid on") certain keywords, which are known as AdWords.
  • When an internet user carries out a search using Google and that search includes a keyword, on the search engine results page ("SERP"), in addition to the (reproduced) search term and the natural or "organic" results of the search, a shaded box appears.
  • The shaded box is currently headed "Ads" although it was previously headed "Sponsored Links" (Google's AdWords service has evolved since 2008), and the box usually promotes three advertisements.
  • More than one advertiser may purchase an AdWord - the advertiser appearing in the shaded box pays to Google an amount (known as "cost per click") whenever a user clicks through to the advertiser's website.
  • Google will also give a 'quality score' to each advertisement and this will also influence where the advertisement is ranked in the 'Ads' box. Factors that are considered include the relevance of promotional text, the 'click through rate' and the relevance of the landing page.
  • Subject to the quality score, the advertiser who bids to pay the highest cost per click will have its advertisement appear highest in the shaded box. Therefore, popular keywords are more expensive than unpopular ones.
  • Advertisers also have the ability to match a keyword to the user's search in different ways. There may be an 'exact match' (where the search term entered by the user must be the same as the selected keyword) or a 'phrase match' (where the search term must contain the same words as the selected keyword - in the same order - but it may include additional words before or after the phrase) or a 'broad match' (where the search term can be matched to different variations of the selected keyword). There is also an 'advanced broad match' which allows a search term to be linked to different keywords which are not the same but still relevant.

It is also worth noting the following factors, mentioned in the judgment, which can also affect both the positioning of advertisements with Google AdWords and how users are influenced by advertisements:

  • The appearance of the SERP can vary depending on the device being used, e.g. personal computer, laptop, tablet or smartphone. It can also vary depending on software and the browser which is used.
  • The appearance of the SERP can be affected by the user's browsing history, in particular where there are cookies on the user's device.
  • A study commissioned by Google in 2011 shows that 71% of users look at advertisements at the top of a desktop SERP compared to 70% at the natural results above the 'fold' (i.e. where the user needs to scroll down) and just 21% below the fold. On average users look at the advertisements for 2.5 seconds, the natural results above the fold for 2.2 seconds and the natural results below the fold for 0.2 seconds.

What did M&S do?

M&S purchased from Google several AdWords containing the name "interflora". This meant that advertisements for M&S's flower delivery service would be displayed on the SERP whenever an internet user entered the search term "interflora" (or similar terms) on the Google search engine.

Prior to May 2008, Google would block a keyword from being purchased as an AdWord by a third party if the trade mark owner notified Google that the keyword had been registered as a trade mark. On 5 May 2008, Google changed its policy for the UK and Ireland and ceased to block keywords registered as trade marks.

On 6 May 2008, M&S started bidding on "interflora" and other keywords relating to "interflora" - this had the effect of triggering the display of advertisements for M&S's Flowers Online service on the SERP. Notably, the advertising text in the M&S advertisement did not incorporate or reference the Trade Marks - there was no reference to Interflora.

In January 2012, Interflora implemented a "golden box" brand defence strategy - ensuring that all Interflora related sites appeared in the shaded box and ensuring that M&S's advertisements were excluded. This meant that Interflora incurred additional bidding costs payable to Google, but as a result M&S's share of internet traffic declined.

The claim

In 2008, Interflora brought proceedings against M&S alleging infringement of the Trade Marks under Article 5(1)(a) and Article 5(2) of the Trade Mark Directive1. Article 5(1)(a) of the Trade Marks Directive (89/104/ EC) confers on a trade mark proprietor the right to prevent third parties using (without consent) in the course of trade "any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered". Article 5(2) provides that a proprietor may prevent all third parties not having his consent from using in the course of trade "any sign which is identical with or similar to the trade mark in relation to goods or services which are not similar to those for which the trade mark is registered, where the latter has a reputation in the Member State and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark".

There was no dispute between the parties concerning the validity of the Trade Marks nor did M&S dispute that Interflora had acquired a substantial reputation in the UK and elsewhere in the European Union in relation to flower delivery and the operation of a flower delivery network.

European Case Law

Case law of the Court of Justice of the European Union ("CJEU") has established that a trade mark proprietor can only succeed in a claim under Article 5(1)(a) of the Directive if six conditions are satisfied:

(i) There must be use of a sign by a third party within the relevant territory;

(ii) The use must be in the course of trade;

(iii) Use must be without the consent of the proprietor of the trade mark;

(iv) It must be of a sign which is identical to the trade mark;

(v) It must be in relation to goods or services which are identical to those for which the trade mark is registered; and

(vi) It must affect or be liable to affect the functions of the trade mark (following Case C-206/01

Arsenal Football plc v Reed [2002] ECR I-10273, Anheuser-Busch, Case C-48/05 Adam Opel AG v Autec AG [2007] ECR I-1017, Case C-17/06 Céline SARL v Céline SA [2007] ECR I-7041 and Case C-62/08 UDV North America Inc v Brandtraders NV [2009] ECR I-1279).

By the time of the trial, there was no dispute as to the first five conditions and it was common ground between Interflora and M&S that the signs used by M&S were identical to the Trade Marks.

The sixth condition is satisfied if the use of the sign affects or is liable to affect one of the functions of the trade mark, the functions being:

  • Origin;
  • Advertising;
  • Investment; and
  • Communication

following Case C-487/07 L'Oréal SA v Bellure NV [2009] ECR I-5185 at [58]-[64].

The Decision

The Judge, Mr Justice Arnold, concluded that, as at the relevant date of 6 May 2008:

  • M&S's advertisements did not enable reasonably well-informed and reasonably attentive internet users to ascertain whether the service referred to in the advertisements originated:
    • from Interflora;
    • an undertaking economically connected with Interflora; or
    • a third party.

Therefore such users would not know that M&S flower delivery service was in competition with, rather than part of the Interflora network; there was nothing in Marks and Spencer's advertisements to inform the user that Marks and Spencer's flower delivery service is not part of the Interflora network.

  • The nature of the Interflora network made it difficult for the reasonably well-informed and reasonably observant internet user to determine whether M&S's service is part of the Interflora network.2
  • A significant proportion of internet consumers (who carried out a Google search for "interflora" and then clicked on M&S's advertisements) were led to believe that M&S's flower delivery service was part of the Interflora network.
  • As a result, M&S's use of the purchased AdWords had an adverse effect on the origin function of the Interflora trade marks.

Accordingly, M&S infringed Interflora's Trade Marks under Article 5(1)(a) of the Trade Marks Directive and Article 9(1)(a) of the Regulation.

Points of note

The judge made the following points of note in his judgment:

  • Third party keyword advertising is not inherently or inevitably objectionable from a trade mark perspective. On the contrary, CJEU case law recognises that keyword advertising promotes competition.
  • The case law of the CJEU establishes that M&S's use of the purchased AdWords adversely affects the origin function of the Trade Marks if M&S's advertisements do not enable reasonably wellinformed and reasonably observant internet users, or enable them only with difficulty, to ascertain whether M&S's flower delivery service originates from Interflora, or an undertaking economically connected with Interflora, or originates from a third party.
  • M&S's advertisements must be considered from the perspective of the reasonably well-informed and reasonably observant internet user, initially as at 6 May 2008.
  • The average reasonably well-informed and reasonably observant internet user is not particularly technically literate, does not know precisely how AdWords operate and is not aware of the issues.
  • In considering what constitutes a reasonably well-informed and reasonably observant internet user, the judge said that although internet literacy has steadily increased in recent years, even now a significant proportion of internet users in the UK do not appreciate that, unlike the natural search results, the advertisements appear on the SERP because the advertisers have paid for the advertisements to be triggered by a keyword consisting of or related to the search term entered by the user.
  • It is the responsibility of the advertiser to ensure that the advertisement is designed and presented in a manner which does enable the reasonably informed and reasonably observant internet user without difficulty to ascertain the origin of the goods or services advertised.
  • M&S made no attempt to adduce any direct evidence of consumer reaction to its keyword advertising. This did not mean that it should be inferred that the evidence would have assisted Interflora's case but it did mean that M&S could not rely upon such evidence to rebut the conclusions drawn from the evidence before the court.


This ruling does not mean the end of services offering cost per click advertising.

Although Google no longer operates a trade mark complaints procedure in the UK by which trade mark owners can apply to block their trade marks being chosen as keywords, other search engines, such as Microsoft's Bing and Yahoo!, do offer such services. Thus the decision will not be of current practical relevance to all search engines.

There were several points of law that were not raised by M&S - in particular the issue of comparative advertising that could have an impact on any future case.

The overall "take" is that there is nothing in the judgment that appears detrimental to the interests of trade mark owners wishing to protect their rights - and the judgment certainly does not give a blanket right to third parties to use another's trade mark as a keyword. Nor does it prohibit the use of trade marks as keywords. Rather the judgment indicates that if a third party's trade mark is used as a key word, any content appearing on the screen of the person conducting the search (other than the natural results of that search) must make it clear that such content does not originate from (or is not economically connected with) the trade mark owner.

This will have marketeers scratching their heads before any purchase, trying to ensure that there could be no implication of connection. For some brands, with obvious public rivalry like Coca Cola and Pepsi, the argument may be harder to run simply because they are so publicly not connected. For more borderline cases, the choice of advertising text becomes key, especially balancing the desire for snappy creative with the need to make clear there is no connection. How this will work in practice remains to be seen. Interesting times may still be ahead!

It is clear that the use of keywords in advertising on the internet should be properly controlled - and any policy in this respect carefully reviewed and adhered to. This is particularly the case where it may be expected that the advertisements shown as a result of the use of keywords will be seen in more than one jurisdiction.


1. The Trade Mark Directive in force in May 2008 was numbered 89/104/EEC. It was replaced by a codified version, 2008/95/EC with effect from 28 November 2008. The alleged infringements started when the original Directive was in force, and (as the judge noted) there is no reason to think that the codification has changed the law in any relevant respect. u

2. As the judge noted, Interflora has commercial agreements in place with several large retailers (including Tesco and the Co-Op. It is a feature of the Interflora network that members trade under their own names and therefore it makes it more plausible that there should be a connection between M&S delivery service and the Interflora network.

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.

Ian Wood
Vanessa Barnett
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.