*AG’s Opinion in C-323/09 Interflora – Brief Analysis

Advocate General (AG) Jääskinen delivered his opinion on the 24th of March on the 7th ECJ Keyword Advertising case: C-323/09 Interflora Inc Interflora British Unit v Marks & Spencer plc Flowers Direct Online Limited. For a short summary on the AG’s main points please see the IPKats (in English) or the Links&Law website  (in German).

Other than reported in some newspapers the author can’t see a big ‘win‘ for TM owners as the AG repeatedly stresses the general admissibility of keyword advertising [par 45, 45] and the need to promote competition and well informed users [par 99].

• The AG highlights that there is a special ‘secondary meaning‘ in regard to the trademark INTERFLORA (due to its franchise system [par 46 – 48]) while at the same time, the trademark itself is exceptionally distinctive or even unique [par 72].  Thus even if the court established an infringement based on Art 5 (1) TMD, the ratio of this decision will be difficult to expand onto other keyword advertising decisions.
  
• Concerning the protection granted by Art 5(2) TMD the court elaborates on the preconditions of a mental link between trade mark and the keyword [par 65 ss]. The AG’s opinion is, that this precondition is fulfilled “in the rather exceptional case of the INTERFLORA trade mark” [par 72]. Although the AG finds the precondition of a mental link to be fulfilled in this special case, he later states that the M&S ad did not lead to ‘blurring‘ [par 91], ‘tarnishment‘ [par 92] or might be seen as unfair ‘free riding‘ [par 105]. As a consequence the AG didn’t see any infringement under Art 5 (2) TMD.