*UK: Reference for a Preliminary Ruling to come – Interflora v M & S

IMG_1720The UK High Court of Justice in Interflora v. Marks and Spencer will join the German Bundesgerichtshof, the French Cour de Cassation, the Dutch Hoge Raad der Nederlanden, as well as the Austrian Oberster Gerichtshof  in asking the ECJ for a preliminary ruling on the issue of the use of a trademark (Art 5 (1) Trade Mark Directive) in the practice of Keyword Advertising. Justice Arnold has asked the parties to submit proposals for questions, but as the parties haven’t yet been able to agree on a set of questions, a hearing will intersect before the court submits its questions to the ECJ. Nevertheless, a very interesting argument can be found in the decision: Interflora complained that the change of Google’s trademark-complaint policy has already had a direct effect on its advertising costs:

“Interflora’s bidding costs for their keywords during the nine days leading up to Valentine’s Day increased from 2p per click in 2008 to 23-28p per click in 2009,” said the High Court ruling. “Interflora estimate that in total their costs will have increased by about $750,000 in the year from 5 May 2008.”

A second case, a dispute between L’Oréal  and eBay is also scheduled to be brought before the ECJ.  I highly recommend (-first printing the 30 pages-) reading the Interflora decision as Judge Arnold has listed in very great detail, all of the other references for preliminary rulings cited above!

Other websites covering this issue:
Out-Law.com (slightly biased.. 😉 )

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