Interflora Inc, Interflora British v Marks and Spencer Plc 

Case Name: Interflora Inc, Interflora British v Marks and Spencer Plc 

Court: UK Court of Appeal, Civil Division 

Judgement Date: 05 November 2014 

Citation: (2014) EWCA Civ 1403 

Facts of the Case 

The Appellant was Marks and Spencer who are a major UK retailer but were not a part of the Interflora  network. The Respondent was Interflora who were a flower network operating with over 1600 member  florists and had partnerships with major UK retailers like Sainsburys, Co-op, Tesco among others.1 

The claim began in the High Court when Interflora filed a trademark infringement claim against Marks  and Spencer (M&S) for use of the word Interflora as part of their advertising strategy. Google had  introduced a search advertising technique called keyword bidding, which allowed companies to pay  search engines to display their ads when a user typed in a specific keyword. Importantly, Google  changed its policy to allow companies to bid on their competitors trademarks, although not to use the  trademark itself. M&S placed a bid and won to use the word Interflora for its flower ads. As a result,  when a user typed “Interflora,” an M&S ad would appear alongside the search results.2 

Interflora brought a claim and argued that the use of its trademark in this way: 

• Caused confusion among consumers, potentially leading them to believe that M&S was part of  or affiliated with the Interflora network; 
• Took unfair advantage of the distinctiveness and reputation of the Interflora brand. 

M&S countered that its use of the keyword was legitimate and did not mislead consumers, nor did it  suggest any commercial connection with Interflora. 

High Court Judgement 

The High Court ruled in favour of Interflora and the findings in the ruling were:3 

1. Trademark Infringement based on Origin Function 

The judge held that M&S flower ads displayed when a user looked up Interflora made it difficult  for a reasonably well-informed and attentive user from knowing whether the service originated  from M&S OR Interflora. It was concluded that the origin function of Interflora’s mark had been  adversely affected leading to infringement. 

2. The Average Consumer Test 

The average consumer test was applied and Arnold J held that a significant proportion of the  average internet users would have believed that there was a connection between M&S and  Interflora. He acknowledged that as much as most internet users would acknowledge the distinction  between a natural search and paid ads, a significant proportion did not appreciate this distinction  and for these reasons, M&S would likely be infringing. 

3. Reversed Burden of Proof 

The burden of proof in trademark infringement cases is on the claimant. Interflora should have had  the burden to prove that the use of the AdWords by M&S would lead to confusion as to the origin  of the goods and services. However, a reversed evidential burden of proof was applied placing the  onus on M&S to prove that the ad was not confusing. 

4. Initial Interest Confusion 

This is an American principle that suggests that if a user is confused even for a split second, that  would be enough to count as infringement. This doctrine was considered by the court and deemed  relevant for showing an adverse effect on the origin function. 

5. Negative Matching 

Using keywords to exclude so that an ad will not appear when those words are searched. If M&S  had added “Interflora” as a negative match, then its ad would not appear when someone searched  for “Interflora.” The court considered that failure of M&S to use negative matching was  infringement as it intentionally allowed their ad to show up when a user looked up Interflora. 

The High Court concluded that Interflora was entitled to a conventional injunction and an EU- wide  injunction to restrain infringement and, M&S was ordered to pay 95% of Interflora’s costs and to post  notice regarding the judgement.4 

The Appeal 

M&S proceeded to the Court of Appeal on the following grounds of appeal:5 

1. That the average consumer test was misapplied 
2. Heavy reliance on surveys without giving sufficient weight to the idea that internet users expect  to see competitors ads in keyword searches. 
3. That the judge erred in treating negative matching as a decisive factor. 
4. Incorrect application of the burden of proof. 
5. Confusion on the application of the Initial Interest Confusion. 

The appeal was allowed, and the Court of Appeal’s decision was as follows: 

1. Average consumer test 

The High Court had not correctly applied the test and that the correct question was whether the  reasonably well-informed and observant internet user, looking at M&S’s ad, would be able to  tell that the service offered by M&S was independent of Interflora. It was wrong to focus on  whether some consumers might be confused 

2. Reliance on surveys 

It was highlighted that there was heavy reliance relied on survey evidence that the Court of  Appeal found flawed, expensive, and not particularly probative. The court advised that courts  should be very cautious about admitting survey/expert evidence in keyword advertising cases. 3. Negative matching 

The High Court was wrong to treat the absence of negative matching as decisive. EU law does  not impose a duty to use negative matching; the key issue is simply whether the ad enables the  average user to distinguish between competitors. 

4. Burden of proof 

The High Court judge wrongly held that the onus lay on M&S to demonstrate that its use of  the Interflora mark as an Adword was sufficiently clear to prevent a real risk of confusion  regarding the origin of its services or goods. The Court of Appeal overturned this, clarifying  that the burden of proving all elements of infringement, including an adverse effect on  trademark functions, rests with the trademark proprietor (Interflora), as is generally established  in both EU and English law. 

5. Initial Interest Confusion 

The Court of Appeal unequivocally rejected the importation of this US doctrine into European  trademark law, deeming it not helpful, unnecessary and potentially misleading gloss, and having  the potential to disrupt fair competition. They emphasized that the Court of Justice of the European  Union had already established “carefully considered checks and balances” for assessing trademark functions in the context of keyword advertising. 

The Court of Appeal concluded that these fundamental errors in law meant they were “far from  confident that the judge would have reached the same conclusion” had these errors not occurred. Given  that re-evaluating the first instance findings of facts and qualitative assessments would require seeing  all documents and hearing witness evidence, which the appellate court had not done, they had “no  alternative but to allow the appeal and remit the case for retrial.6 

Significance 

The decision in Interflora v Marks & Spencer is significant for several reasons. First, it clarified the  correct application of the average consumer test in keyword advertising cases, emphasising that  infringement requires proof that the reasonably observant internet user would be unable to discern that  the advertiser is independent of the trademark owner. Second, it underscored that negative matching  is not a legal obligation; competitors are not required to proactively exclude rivals’ marks, shifting the  focus back to whether the advertisement itself is misleading. Third, the judgment confirmed that the  burden of proof remains firmly on the trademark proprietor, a critical safeguard against overreach in  infringement claims. Importantly, the Court of Appeal’s rejection of the initial interest confusion doctrine signalled a divergence from US trademark law, preventing an expansion of liability in Europe  that could undermine legitimate competitive practices. Overall, the case demonstrates the balance  courts must strike between protecting trademarks as indicators of origin and allowing fair competition  in digital markets. 

Conclusion 

Interflora v Marks & Spencer illustrates the complexities of applying traditional trademark principles  to modern digital advertising. While the High Court initially broadened liability by treating negative  matching, survey evidence, and fleeting consumer confusion as decisive, the Court of Appeal corrected  course by reasserting the centrality of the average consumer standard and the proprietor’s burden of  proof. The ruling ultimately narrowed the scope of trademark protection in keyword advertising  disputes, reinforcing that such practices are not inherently unlawful. In practical terms, the case  provides important guidance to both trademark proprietors and advertisers: rights holders must bring  clear evidence of consumer confusion, while competitors may legitimately bid on rival trademarks 

provided their ads enable consumers to understand the independence of their services. The case thus  stands as a key authority in European trademark law, shaping the permissible limits of online  advertising and competitive behaviour. 

References 

Interflora Inc, Interflora British v Marks and Spencer Plc (2014) EWCA Civ 1403 Interflora Inc, Interflora British v Marks and Spencer Plc (2013) EWHC 1291 (Ch)

1Interflora Inc, Interflora British v Marks and Spencer Plc (2014) EWCA Civ 1403. 

2Ibid. 

3Interflora Inc, Interflora British v Marks and Spencer Plc (2013) EWHC 1291 (Ch).

4Ibid.

5Interflora Inc, Interflora British v Marks and Spencer Plc (2014) EWCA Civ 1403.

6Interflora Inc, Interflora British v Marks and Spencer Plc (2014) EWCA Civ 1403.