Interflora Inc & Anor v Marks and Spencer Plc & Anor
2014
CHANCERY DIVISION
United Kingdom
CORAM
- MR. JUSTICE BIRSS
Areas of Law
- Intellectual Property Law
- Civil Procedure
- Human Rights Law
- Commercial Law
2014
CHANCERY DIVISION
United Kingdom
CORAM
AI Generated Summary
Interflora applied for an interim injunction against Marks and Spencer (M&S) for trademark infringement in using 'interflora' as a Google AdWord, diverting customers. Initially denied, the trial court granted the injunction, but the Court of Appeal found errors and ordered a retrial. The current hearing pertains to Interflora seeking an interim injunction pending this retrial. The court denied the injunction, balancing both parties' potential uncompensatable harms and considering that commercial speech is less protected under Article 10 ECHR. The court emphasized that damages for increased advertising costs are compensatable and that both parties have a finely balanced case.
Judgment
MR. JUSTICE BIRSS:
This is an application for an interim injunction. The claimant is Interflora. They are a well-known flower delivery network in the United Kingdom. I think about a third of florists in the UK are members of the network. They are a substantial and successful business, and the name Interflora is well known.
The defendant is Marks and Spencer. They are a very well known retailer. They are particularly well known for clothing and food. They are a household name in the United Kingdom. They also sell flowers.
Both operate online. Interflora has a website, and so does Marks and Spencer. Both take orders online for flowers and flower deliveries. I believe they are the two top online flower delivery businesses in the UK, at least by volume.
This dispute relates to internet searching. It has a long history. It really began in 2008, when Google changed its policy and allowed third parties to bid for adwords which were trade marks but did not belong to the bidder. So, from that time, Marks and Spencer began bidding for the adword “interflora”. Accordingly, a person typing the word "interflora" into the Google search engine, whom, one might suppose, was looking for Interflora, perhaps to buy flowers, could be presented with a so-called sponsored link that is an advertisement for Marks and Spencer. They would click through the advertisement and get to the Marks and Spencer site and, one might imagine, buy flowers. An important point relied on by both sides is that the Marks and Spencer advertisement does not contain any reference to Interflora.
Interflora contends that this amounts to trade mark infringement of its trade marks for the word INTERFLORA registered for flowers.
After proceedings started, the case was stayed for some years pending references to the Court of Justice to the European Union. At the hearing to decide on the references and to consider a stay, Arnold J held that no interim injunction pending the stay should be granted. One reason at the time was that the claimants had delayed too long before seeking interim relief.
There were two relevant decisions from the Court of Justice: so-called Google France and the Interflora decision itself. The Google France decision held, essentially, that adwords are at least capable of being infringements of trade marks. The Interflora decision considered the issues arising on the facts of this case.
It is difficult to summarise the conclusions of law that these judgments have reache