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Interflora set to win ruling over trademark use
By Nikki Tait in Brussels
Published: March 24 2011 14:49 | Last updated: March 24 2011 14:49
Advertisers cannot use keywords that correspond to trademarks if this will confuse online consumers as to the origin of the goods or services, a senior legal adviser at the European Unionâs highest court said on Thursday.
The non-binding opinion was issued in a case involving Marks and Spencer, the British retailer, and Interflora, the flower delivery business. The latter had sued the retail chain in the English courts for using its trademarked name as a keyword on Google â together with various misspellings of Interflora and related expressions such as âInterflora flowersâ.
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As a result, typing in âInterfloraâ as a search term in the Google search engine would bring up an M&S advert under the âsponsored linksâ heading, even though that advert bore no relationship to the flower delivery business and did not even mention it.
The case was referred to the European Court of Justice, which was asked to decide whether the use of a competitorâs trademark as a keyword to trigger an online advert constituted âuseâ of that trademark.
On Thursday, the senior legal adviser said that it did, and that the owner of the trademark could prohibit such conduct if consumers were likely to be confused over whether the goods or services promoted in the ad were supplied by the trademark owner.
âThe proprietor of a trademark is entitled to prohibit such conduct ⦠in the case where that ad does not enable an average internet user ... to ascertain whether the goods or services referred to in the ad originate from the proprietor of the trademark or an undertaking economically connected to it or from a third party,â said Niilo Jääskinen, advocate general.
Advocate generalsâ opinions are not binding on the full court at the ECJ which will rule on the Interflora case in a few monthsâ time, although they are followed in the majority of cases.
By Nikki Tait in Brussels
Published: March 24 2011 14:49 | Last updated: March 24 2011 14:49
Advertisers cannot use keywords that correspond to trademarks if this will confuse online consumers as to the origin of the goods or services, a senior legal adviser at the European Unionâs highest court said on Thursday.
The non-binding opinion was issued in a case involving Marks and Spencer, the British retailer, and Interflora, the flower delivery business. The latter had sued the retail chain in the English courts for using its trademarked name as a keyword on Google â together with various misspellings of Interflora and related expressions such as âInterflora flowersâ.
EDITORâS CHOICE
Online advertising: It is hard to tell if the ads work - Mar-15
Social media: The worst thing is to ignore your customers - Mar-15
Omnicom in deals to target online ads - Mar-09
As a result, typing in âInterfloraâ as a search term in the Google search engine would bring up an M&S advert under the âsponsored linksâ heading, even though that advert bore no relationship to the flower delivery business and did not even mention it.
The case was referred to the European Court of Justice, which was asked to decide whether the use of a competitorâs trademark as a keyword to trigger an online advert constituted âuseâ of that trademark.
On Thursday, the senior legal adviser said that it did, and that the owner of the trademark could prohibit such conduct if consumers were likely to be confused over whether the goods or services promoted in the ad were supplied by the trademark owner.
âThe proprietor of a trademark is entitled to prohibit such conduct ⦠in the case where that ad does not enable an average internet user ... to ascertain whether the goods or services referred to in the ad originate from the proprietor of the trademark or an undertaking economically connected to it or from a third party,â said Niilo Jääskinen, advocate general.
Advocate generalsâ opinions are not binding on the full court at the ECJ which will rule on the Interflora case in a few monthsâ time, although they are followed in the majority of cases.
