Interflora Inc and another v Marks & Spencer plc (Case C-323/09); [2011] WLR (D) 281
“Article 5(1)(a) of First Council Directive 89/104/EEC and article 9(1)(a) of Council Regulation (EC) No 40/94 on the Community trade mark was to be interpreted as meaning that the proprietor of a trade mark was entitled to prevent a competitor from advertising on the basis of a keyword which was identical with the trade mark and which had been selected in an internet referencing service by the competitor without the proprietor’s consent, where that use was liable to have an adverse effect on one of the functions of the trade mark. Article 5(2) of Directive 89/104 and article 9(1)(c) of Regulation No 40/94 was to be interpreted as meaning that the proprietor of a trade mark with a reputation was entitled to prevent a competitor from advertising on the basis of a keyword corresponding to that trade mark, which the competitor had, without the proprietor’s consent, selected in an internet referencing service, where the competitor thereby took unfair advantage of the distinctive character or repute of the trade mark (free-riding) or where the advertising was detrimental to that distinctive character (dilution) or to that repute (tarnishment).”
WLR Daily, 22nd September 2011
Source: www.iclr.co.uk
