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Keywords - Will New Advocate General Opinion Change Things?

Written by Jody Tsigarides on 25 March 2011

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Keywords - Will New Advocate General Opinion Change Things?

The High Court dispute between Interflora and Marks & Spencer rumbles on and a recent opinion published by ECJ Advocate General Niilo Jaaskinen may just shape the way things fall.

The current case focuses on the use by M&S of the keyword Interflora in its online marketing campaigns. Essentially when a consumer types in the term 'Interflora' in an internet search engine, the M&S website will be listed on the first page. Interflora has challenged this use of its trade mark and the ECJ must now decide if this is trade mark infringement or not.

As things stand, it will only be considered trade mark infringement if the trade mark is used in the text of the advert and not if it simply triggers an advert.

The Advocate General has advised that as well as the above, owners of well known trade marks with a reputation should be able to prevent the use of its trade mark if that use will blur its reputation, tarnish it or free ride off of it. He also went on to add that if a mark is not featured in the text of an advert it will simply be seen as an alternative option (i.e. to the brand entered into the search engine) and does not amount to trade mark infringement.

The legal world is hotly anticipating the full decision but it is this writers view that the law will stay the same with the very possible addition of the 'reputation' addition as advised by the Advocate General. This will keep the status quo but also add an final line of attack for those companies whose reputation should allow them to prevent others from using their trade mark.

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