Marks & Spencer used the term 'Interflora' as a Google Ads keyword so that its own advertisements would appear in the search results of consumers looking for Interflora.

The CJEU held that this practice amounts to infringement if the public cannot clearly tell that the ad does not originate from the trademark proprietor. The key question is whether the advertisement suggests an economic link between the advertiser and the proprietor of the mark.

If the ad makes it sufficiently clear that it comes from a competitor, without creating the impression of affiliation, use of the keyword may be lawful. If, however, it creates confusion as to the origin of the services, it becomes infringement.

This judgment is fundamental for any digital marketing strategy. If competitors are using your brand as a keyword, or conversely, if you wish to build campaigns on a competitor’s terms, prior legal analysis is essential.