|The IPKat does some field|
research into flowers ...
|Your M & S -- but our INTERFLORA marks,|
said Interflora. And they were right
First, was the reasonably well-informed and reasonably observant internet user deemed to be aware, on the basis of his or her general knowledge of the market, that M & S's flower delivery service was not part of the Interflora network but was in competition with it? The court was not satisfied that that was generally known at the relevant time, nor was it satisfied that it was generally known now.
Secondly, would M & S's advertisements enable the reasonably well informed and reasonably observant internet user to tell that M & S's flower delivery service was not part of the Interflora network? On the facts, they did not. There was nothing in any of M & S's advertisements before the court that could be said to inform the reader that M & S's flower delivery service was not part of the Interflora network.
|Since M&S, which started out with clothing,|
branched out into flowers, might Interflora not
retaliate by selling underwear?
Thirdly, what was the nature of the Interflora network? The CJEU had opined that the nature of the Interflora network might make it particularly difficult for the reasonably well-informed and reasonably observant internet user to determine, in the absence of any indication in the advertisement, whether M & S's service was part of the network or not. The court agreed with that. This was because one feature of the Interflora network was that members traded under their own names. In addition, lnterflora had commercial tie-ups with several large retailers. That made it all the more plausible that there should be a connection between M & S's flower delivery service and the Interflora network.