Google ran an ‘AdWords’ service, whereby economic operators could pay to have a link to their website com up in event that a certain keyword was entered into search bar. Under this service, advertiser could pay to have his advert featured more prominently upon search of keywords by paying a ‘maximum price per click’.
D, Marks and Spencer, paid to have a link to their flower delivery service come up when people entered term ‘Interflora’. C sued for infringement of its trademark. Relevant issues were whether D’s actions constituted infringement under Article 5(2) of Trade Mark Directive. Held:
Detriment to Distinctive Character
· Use of sign identical/similar to an earlier trade mark is detrimental to distinctive character where it turns that mark into a generic term.
· However use of sign identical/similar to trade mark in keyword search does not necessarily make that term generic
Ø i.e. provided that average internet user looking at the advert realises that goods being advertised do not originate from trade mark owner, distinctiveness of trade mark has not been reduced
· See notes