Firstly, M & S’s advertisements must be considered in context from the perspective of the reasonably well-informed and reasonably observant internet user as at 06 May 2008, not tomorrow, not today but back in May 2008. The judgment further made note of the fact that such average internet user is not particularly technically literate, does not know precisely how AdWords operates and is not aware of the issues surrounding AdWords i.e. they are not aware of the distinction between natural search results and paid advertisements. Arnold then makes reference to the fact that internet literacy has risen over the last 5 years but that even now a significant proportion of internet users in the UK do not appreciate the difference between natural and sponsored search results.
Secondly, the nature of Interflora’s network. Arnold stressed the importance of the fact that Interflora’s members trade under their own names and the fact that Interlora have/have had tie-ups with several large retailers (their relationships with Tesco and Sainsburys are discussed at some length in the judgment). As a result of the nature of Interflora’s network and its tie-ups with large retailers the judge ruled that the reasonably well-informed and reasonably observant internet user is not aware, on the basis of their general knowledge of the market, that M & S’s flower delivery service is not part of the Interflora network, but is in competition with it.
Taking into account the above 2 points the judge ruled in favour of Interflora finding that the text of M & S’s advertisements does not enable reasonably well-informed and reasonably observant internet users, or enables them only with difficulty, to ascertain whether M & S’s flower delivery service originates from Interflora, or an undertaking economically connected with Interflora, or originates from a third party. This is because “there is nothing in any of M & S’s advertisements in issue to inform the reader that M & S’s flower delivery service is not part of the Interflora network.”
- Don’t use the third party’s mark in the text of the advert itself; and
- Make it clear that there is no link between you (or your client if you are a consultant) and the third party i.e trade mark owner.
If you do that then based on the current keyword cases I would suggest that you are in a strong position to defend any claim made against you. Of course this is an ever changing area of law so it is important to keep up to date with the case law as it comes in… i.e. read this blog!