## Facts

- Interflora operated a flower-delivery network and owned UK and EU registrations for the word mark INTERFLORA, which had a substantial reputation.
- Marks & Spencer plc (M&S) offered an online flower-delivery service; Flowers Direct Online Ltd participated in M&S’s advertising campaign.
- M&S bought from Google’s AdWords system the keyword “interflora” and close variants so that sponsored links for M&S’s service appeared when users searched for “interflora.”
- Interflora alleged trademark infringement under provisions governing (i) identical sign/identical goods and (ii) enhanced protection for marks with a reputation, including dilution, tarnishment, and unfair advantage.
- The High Court (England & Wales) referred questions to the Court of Justice of the European Union (CJEU) for interpretation of EU trademark law as applied to keyword advertising.

## Issues

1. Whether selecting a third party’s registered mark as an AdWords keyword constitutes “use” of the sign “in relation to goods or services” by the advertiser.
2. Under “double identity” rules, when keyword-triggered ads infringe by adversely affecting, or creating a likelihood of adversely affecting, the trademark’s origin-indicating function.
3. For marks with a reputation, when keyword advertising takes unfair advantage of, or is detrimental to, the mark’s distinctive character or repute.
4. Whether analysis changes where the mark signifies a network of affiliated undertakings (rather than a single entity).

## Decision

- The CJEU held that an advertiser’s selection of a sign identical (or similar) to another’s trademark as a keyword, causing ads to display for the advertiser’s goods or services, is “use in relation to goods or services.”
- The CJEU held that infringement in the identical sign/identical goods setting depends on whether the ad prevents, or makes it difficult for, the average internet user to determine whether the advertised goods/services originate from the trademark proprietor (or an economically linked undertaking) or from a third party.
- The CJEU held that use of a reputed mark as a keyword may be prohibited if it takes unfair advantage of the mark’s distinctive character or repute, or is detrimental to distinctive character (dilution) or repute (tarnishment), based on a context-specific assessment.
- The CJEU directed that, for “network” marks, the court must consider whether users may infer that the advertiser belongs to the proprietor’s network or is economically linked.
- The CJEU did not decide liability and remitted application of these standards to the referring court.

## Legal Principles

- Keyword selection by an advertiser can constitute trademark “use” for infringement analysis; the intermediary’s technical role is treated differently from the advertiser’s commercial use.
- Even where the sign and goods/services are identical, prohibition is justified only if a trademark function—especially the origin function—is adversely affected or is likely to be adversely affected.
- The origin function is impaired where the sponsored link does not enable, or enables only with difficulty, the reasonably well-informed and reasonably observant internet user to tell whether the ad’s offering comes from the trademark owner (or an economically linked undertaking) or from an unrelated third party.
- For marks with a reputation, “unfair advantage” may exist where the advertiser exploits the mark’s attraction, prestige, or marketing power to promote its own offer without equivalent marketing effort or compensation.
- “Detriment to distinctive character” may exist where the use weakens the mark’s ability to identify a single commercial source by associating it with multiple undertakings; “detriment to repute” may exist where the advertising harms the mark’s image.
- The legality of keyword advertising is not determined by a per se rule; it requires evaluation of the ad’s presentation and the likelihood of confusion or reputational harm in context, including network-related perceptions.

## Conclusion

The CJEU treated AdWords keyword purchases by advertisers as actionable “use” and held that infringement depends on whether the resulting ad undermines the trademark’s origin function; for reputed marks, liability may also arise from unfair advantage or detriment, assessed in context, including how users perceive affiliation with a trademark-based network.


Interflora Inc. v. Marks & Spencer plc, Case C-323/09 (C.J.E.U. 2011)