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The ECJ hearing  of Interflora v  Marks & Spencer is fight over trade mark infringement and search terms. It  could have major implications for the future of search engines - and with ACTA trademark enforcement  lurking in the background, it could be another nail in the coffin  for the Internet as we know it.


Today, the case hearing begins in the European Court of Justice of Interflora v  Marks & Spencer (M & S). Interflora and Marks and Spencer (M & S) are two long-established and well-loved British businesses.  It has all the hallmarks of an old-fashioned competitive strike by an incumbent against a new market entrant. And it does not have the appearance of an attack on the Internet, in the way that the French law suits brought by L'Oreal and Louis Vuitton do. Yet the outcome may have wider  ramifications for  Internet users.


The case concerns

Marks & Spencer's use of Interflora as a paid-for search term in Google AdWords to promote its new online flower-selling business. Interflora, which started in business  as Flowers by Wire in the 1920s, is upset at this tactic by its new competitor, which is better known for its underwear and food.


As I understand it, the ECJ is being asked to assess whether the use of ‘Interflora' as  a search term is an infringement of the company's trade mark, and also whether or not Google, the search engine, is liable for any such infringement.


It is one of  a series of cases which are testing the law of trademark rights on the Internet, and the liability of search engines and other intermediaries. Many of those pursuing these cases actively want to see the end of companies such as Google and eBay.


The issue right now, however, is ACTA (Anti-counterfeiting Trade Agreement) a global pact which seeks to impose  new copyright and intellectual property enforcement measures for the Internet.


The October draft of ACTA has trade marks as one of the outstanding issues which the negotiators have failed to resolve (in spite saying that they have an agreement). It is highlighted in the Internet section as an outstanding matter.


If the Internet section of ACTA (Article 2.18)  includes trademarks, then anyone faced with Interflora's situation would be able to get websites or pages blocked, and would have another legal lever to exert  pressure on Google.  Trademarks are shaded into Article 2.18.3  for ‘co-operative efforts' between rights-holders and Internet companies, and into 2.18.4  which tries to weaken EU privacy law.


If  trademark holders could go after individuals and small businesses  in the same way the music industry goes after file-sharers - which is a possible reading of the ACTA provision  - then,  bearing in mind the law suits against eBay, this could be predjucial for ecommerce. It would be another move to close off the Internetand hand control to large corporates.  In Europe, such moves  would conflict with the i2010 objectives to promote ecommerce and the digital economy.  

And   trade mark inclusion in ACTA would  be outside the current EU acquis communitaire - proving once again how the European Commission is being disingenuous   on ACTA.


Of course, DG Trade could always admit the error of its ways and say it with flowers! 


Interflora v  Marks & Spencer  - read the case details



This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) Interflora v Marks & Spencer -  flowers for ACTA?  13 October 2010

Iptegrity in brief is the website of Dr Monica Horten. I’ve been analysing analysing digital policy since 2008. Way back then, I identified how issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing.   I’ve served as an independent expert on the Council of Europe  Committee on Internet Freedoms, and was involved in a capacity building project in Moldova, Georgia, and Ukraine. I am currently (from June 2022)  Policy Manager - Freedom of Expression, with the Open Rights Group. For more, see About Iptegrity is made available free of charge for  non-commercial use, Please link-back & attribute Monica Horten. Thank you for respecting this.

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