Everybody is keeping a close eye on the Interflora vs Marks & Spencer case which we first covered back in December. Unlike a lot of other similar cases this one will probably go the distance simply because of the brands involved.
If this case goes the distance the implications for brand bidding could be quite significant.
The High Court in London has decided that the law is not settled on whether brand bidding on a competitorâ€™s brand is lawful and has referred certain questions to the European Court of Justice for determination. This clearly goes against Marks and Spencerâ€™s position that the practice is â€œnot unlawfulâ€. The High Court has denied Marks & Spencer permission to appeal to the Court of Appeal in respect of the nature of the questions referred to the European Court of Justice.
In his judgement, Mr Justice Arnold commented that Googleâ€™s decision to operate a different policy in the UK and Ireland to that in the rest of Europe is â€œfairly remarkable given that the relevant law is, or should be, essentially the same throughout Europe.â€