On 5 November 2014 the Court of Appeal came to the conclusion that the appeal brought by Marks and Spencer plc must be allowed and that the case should be remitted to the High Court for retrial of the claims for trade mark infringement under Article 5(1)(a) of the Trade Marks Directive (as implemented in section 10(1) of the Trade Marks Act 1994) and Article 9(1)(a) of the Community Trade Mark Regulation.
The claim for trade mark infringement arose in the context of the display on the internet by Marks and Spencer plc of advertisements in response to the entry into the Google search engine by internet users of search terms comprising the word “interflora” or minor variants of the word “interflora”.
At the trial at first instance Marks and Spencer were found to have infringed Interflora’s registered UK and Community trade marks under Article 5(1)(a) of the Trade Marks Directive and Article 9(1)(a) of the Community Trade Mark Regulation.
The Court of Appeal’s judgment is notable for its analysis of the law in relation to (i) the average consumer test, (ii) the onus of proof, (iii) initial interest confusion and (iv) injunctive relief and negative matching in the context of at least trade mark infringement in keyword advertising cases. The judgment of the Court of Appeal also dealt with procedural irregularities and errors on the evidence.
Marks and Spencer plc was represented by Geoffrey Hobbs QC and Emma Himsworth QC of One Essex Court.
Read the full text of the judgment.