Thursday, December 4, 2008

Marks and Spencer trade mark infringement

It's not just a trade mark infringement's a Marks and Spencer's trade mark infringement case. Middle class favourite Marks and Spencer have been sued by Interflora (the worlds largest flower delivery firm), also named in the suit is Flowers Direct Online (who do exactly what you might think they do).

Basically Marks and Spencer and Flowers Direct Online are accused of bidding on Interflora's trade mark (that would be 'Interflora') and mispellings of the same on Google's Adwords. Adwords allows users to bid for certain keywords, then when someone searches for those words on Google their site appears in the "sponsored links" section.

Apparently: "when a user enters the search term INTERFLORA or similar into the Google search engine, it is the intention of that user to look for [Interflora or its associates]."

Well that was pretty obvious but the claim went on: stating that the unauthorised use was detrimental "because there will be a blurring or dilution that will lessen the capability of the Trade Marks to distinguish [Interflora] and its goods and or services from those of others." and that using the marks enables M & S and Flower Direct "to free-ride upon the fame of the Trade Marks, thus conferring upon themselves and/or their goods or services an unfair advantage over the Claimants and/or other traders, and/or members of the public."

Avant IPers will be aware of the recent 'Mr Spicy' case where the defendant was not to infringe a mark in the same way because the sponsored word itself was 'plain English'. Applying the same rule in this instance it would appear likely that M & S and Flowers Direct will be found to have infringed Interflora's mark, unfortunately though IP Freely is not the judge and we will have to wait for the verdict.

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