Interflora Inc & Anor v Marks and Spencer Plc [2014] EWCA Civ 1403
The Interflora v M&S saga goes on … and on … and on.
On 5 November 2014 the Court of Appeal gave judgment on Marks and Spencer’s appeal from the judgment of Arnold J in May 2013 that M&S’s Google Adword bidding on Interflora was an infringement of Interflora’s trade mark registration. Arnold J had decided that M&S’s advertising triggered in response to searches for Interflora did not enable reasonably well-informed and reasonably attentive internet users to ascertain whether the products and service offered in the advertisements were being offered as part of the Interflora network. He accordingly held that M&S had infringed Interflora’s trade mark.
The Court of Appeal decided that Arnold J had been wrong in his analysis of the legal test laid down by the CJEU in its decision in Google France and elaborated in its decision on the reference in this case in 2011. It also decided that he had been wrong to find that initial interest confusion forms part of UK and European trade mark law. However, it held that he had been correct in his assessment of the nature of the average internet user and correct to find that a conclusion that significant proportion of consumers were led incorrectly to believe that M&S’s delivery service was part of the Interflora network was sufficient to reach a finding of infringement.
In the light of the legal errors in Arnold J’s judgment the Court of Appeal was unable to determine whether he would have found that there was infringement had he applied the correct legal tests. Consequently the Court decided that it would have to remit the action for a retrial on the issues and factual questions arising in that determination applying the correct legal tests.
We will update this post when the date and terms of the retrial have been fixed.