Interflora v Marks & Spencer

May 25, 2009

The case of Interflora, Inc. Interflora British Unit v Marks and Spencer PLC Flowers Direct Online Limited, [2009] EWHC 1095 (Ch) remains open after a judgment published on 22 May. Arnold J, who gave judgment in L-Oréal v eBay [2009] EWHC 1094 (Ch) on the same day, referred the main issues to the European Court of Justice for guidance. The live choices had been whether to await the ECJ guidance on adwords (see here), make a reference specific to the case or grant an interim injunction against Marks & Spencer. Arnold J chose to make a reference specific to the case and his judgment reflects a certain lack of confidence in the chances of clear guidance emerging from the ECJ without such a specific reference.

The judgment can be read in full at

The judgment includes a lengthy exposition of the adwords methods. One irresistible snippet from the opening of the judgment of Arnold J is this (emphasis added):

1. This is another case about Google AdWords and registered trade marks. It is one of a considerable number of cases around Europe in which trade mark owners are complaining that the sale of keywords by Google to third parties infringes their rights. Such cases have been brought against both Google itself and against advertisers. Given that both European trade mark law and European law with regard to the liability of internet service providers are substantially harmonised, this is a question upon which, subject to one qualification, there ought to be a common European set of answers to the issues that arise in such cases. That common European set of answers can only be provided by the Court of Justice of the European Communities. As I shall explain below, a number of national courts around Europe have already requested preliminary rulings from that Court on a number of these issues under Article 234 EC. It is to be hoped that the Court will give a clear set of answers as soon as possible.
2. The qualification is that, as I shall explain, since May 2008 Google has had a different policy in the United Kingdom and Ireland to its policy elsewhere in Europe. That in itself is fairly remarkable given that the relevant law is, or should be, essentially the same throughout Europe. It may mean, however, that the common European set of answers must be amplified or qualified so far as the position in the United Kingdom and Ireland is concerned.

22. . . .Google has not explained why it changed its policy in the United Kingdom and Ireland and not in other member states. A cynic might suggest that the explanation for this was a calculation on the part of Google that the courts in the United Kingdom and Ireland interpret trade mark law more restrictively (that is to say, less in favour of trade mark owners) than courts in other member states. If that were the true explanation, it would be a sad reflection on the state of European trade mark law.