The Business Law Reports
[2015] Bus LR 492
Court of Appeal
Interflora Inc and another v Marks & Spencer plc (No 5)
[2014] EWCA Civ 1403
2014 July 8–
10;
Nov 5
Patten, Kitchin LJJ, Sir Colin Rimer
Trademark— Infringement— Burden of proof— Defendant paying search engine to advertise its flower delivery service through keyword advertising— Advertising appearing in response to entry into search engine of search terms consisting of or comprising word protected by claimants’ trade marks— Claimants alleging infringement of trade marks— Whether reasonably well-informed Internet users able to ascertain without difficulty whether goods or services advertised originating from trade mark proprietor— Whether burden of proof lying on defendant to prove non-infringement— Whether defendant using trade mark by securing flower-related generic terms as keywords—
Council Directive 89/104/EEC, art 5(1)(a)
—
Council Regulation (EC) No 40/94, art 9(1)(a)