The European Court of Justice (ECJ) is likely to rule that Marks & Spencer infringed Interflora’s trademark rights by buying the florist’s name as a Google AdWord, overturning a High Court ruling in the UK.
Although an official decision is not expected until later this year, the ECJ’s Advocate General Niilo Jääskinen has already made his recommendation, and it would be virtually unprecedented for this to be ignored.
His view reverses a 2009 High Court ruling and is likely to mean companies can no longer use rivals’ names to send Google users to their websites by clicking on a search-based ad.
Interflora started legal action when M&S bought its trademarked name as an AdWord from Google, meaning that users searching for “Interflora” could be presented with an ad that connects them to the M&S website instead.
A 2010 ruling by the ECJ said that Google had not broken any laws by allowing a trademarked word to be sold in this way, but failed to decide whether the purchaser – in this latest case, M&S – was in breach of trademark protection rules.
The new opinion makes it clear that M&S should be liable for trademark infringement, although the proposal is not binding and is subject to a final ECJ ruling.
Fashion group LVMH, which owns the Louis Vuitton brand, won a similar case last year at the ECJ, which ruled it was allowed to protect its trademarks from being used as AdWords, without the consent of Google.
