Does use of a keyword that corresponds to a trade mark by advertisers on an internet search engine constitute “use” of a trade mark and if so can the trade mark owner prohibit such use?

Advocate General Jääskinen’s (AG) opinion in relation to Interflora Inc, Interflora British Unit v Marks & Spencer PLC, Flowers Direct Online Limited C-123/09 delivered on 24 March 2011 indicates that brand owners can, in certain circumstances, prevent keyword advertising.

The opinion has been widely reported in the media and brand owners are therefore hopeful that the opinion will be followed by the European Court of Justice (ECJ). Although the AG’s opinions are not binding on the ECJ they are persuasive and have reportedly been adopted in at least 80% of the cases before the full court.

Written by Donvay Wegierski, Director at Werksmans Attorneys