The European Court had previously indicated how to look at cases like these. Use of someone else’s trademark is permitted under certain conditions. The advertiser must offer an alternative and this alternative may not be a fake product. In addition, it should be clear to the average Internet user from whom the advertisement originated.
In similar cases in the Netherlands the court has held several times that there is no infringement because consumers understand that alternatives are offered when using Google. The English court clearly choose a different route. Which states that the Internet user is always aware of which advertisement originates from the owner of the trademark and what does not. Consumers can therefore think that there is a relationship between M & S and Interflora. That is therefore misleading to consumers.
