Trademark laws that apply to internet advertising may be due to change as it emerges that Marks & Spencer’s use of Interflora as a Google keyword may be stopped.

Flowers delivery business Interflora is suing Marks & Spencer for buying its brand name as a keyword on Google. Interflora objects to the fact that when users search for Interflora, Google delivers sponsored links showing Marks & Spencer.  

The case was referred to the European Court of Justice, which was asked to decide whether the use of a competitor’s trademark as a keyword to trigger an online advert constituted “use” of that trademark.

A senior legal adviser at the European Union’s highest court said today that it did and advertisers cannot use keywords that correspond to trademarks if this will confuse online consumers as to the origin of the goods or services.

“The proprietor of a trademark is entitled to prohibit such conduct … in the case where that ad does not enable an average internet user … to ascertain whether the goods or services referred to in the ad originate from the proprietor of the trademark or an undertaking economically connected to it or from a third party,” said Niilo Jääskinen, advocate general.

Advocate generals’ opinions are not binding on the full court at the ECJ, which will rule on the Interflora case in a few months’ time, although they are followed in the majority of cases.