Following up on our previous article on the legal fight between Interflora UK vs. M&S on the Google Adwords UK network, here is the latest, the fight is raging on!

Here is a quick wrap up of the situation:

• M&S bids on the 'Interflora' brand of the Google Adwords network
• Interflora starts legal action vs. M&S for trademark infringement
• High profile brands follow suit vs. Google - LVMH / Louis Vuitton, Portacabin
• 2009, The High Court of Justice of Wales and England refers the questions to the ECJ
• 2010, the ECJ ruled that Google was not liable for trade mark infringement by selling the advertising service to rival companies.

Last week, Niilo Jääskinen - the Advocate General of the European Court of Justice (ECJ) - advised for Marks & Spencer to be found liable for trade mark infringement by using ‘Interflora’ as a Google AdWord keyword. The ECJ ruling, which may follow Niilo Jääskinen recommendation , will follow shortly.

Marks & Clerk Solicitors comment: "Interflora will be the victor if today’s recommendations are followed. The Advocate General considers that use of a rival trade mark as a Google AdWord constitutes trade mark infringement where the consumer is unable to determine whether or not the advert is for the brand they originally searched for.

“Last year’s Google case established that purchasing a rival’s brand name as an AdWord is not trade mark infringement per se. But while online consumers are much more informed than fifteen years ago, rivals should shy away from using each other’s trade marks for their own commercial purposes where doubt or ambiguity as to the origin of the goods or services could arise.

 “This opinion is based heavily on the particular facts here – namely that the trade mark ‘Interflora’ denotes a commercial network of florists providing certain services and products. However, it will bring some comfort to brand owners that in such situations where members of the public could believe that the competitor is a member of their commercial network, they can prohibit the use of their trade mark as an AdWord.

 “After last year’s ruling in its favour, Google will have to wait for the Court’s decision in this case before declaring a decisive victory. Although not represented in this legal battle, it is still directly affected – the AdWord service is a major source of revenue for the California-based corporation. With this opinion, Google’s customers may well reconsider how extensively they want to use a competitor’s mark as an AdWord.”

Suite au prochain épisode...