particular manner in which an advertisement has been presented in the context of the facts of that case.
Generally, foreign jurisdictions have held that ordinary keyword advertising using another proprietor's
trademark does not have an adverse effect on the advertising function of a trade mark and does not
necessarily lead to confusion. This only occurs where the advertisement of the competitor does not enable the
average internet user to ascertain with a certain degree of ease whether the goods and services originate
from the proprietor of the trade mark. What is postulated is the reasonably well informed consumer.39
[47] As long as the use of the keyword triggers the display of an advertisement which the reasonably informed
and observant internet user can tell that the goods originate, not from the proprietor but the competitor, then
it is not unfair. Where advertisements are displayed without offering imitations of the goods, merely an
alternative to the original goods, these fall within the ambit of fair competition.40
[48] Internet advertising on the basis of keywords corresponding to trade marks merely offers internet users
alternatives to the goods and services of those of the proprietors of that trade mark. The selection of a sign
identical with another person's trade mark does not deny the proprietor of that trade mark the opportunity of
using its mark effectively to inform and win over customers.41
Page 175 of [2015] 2 All SA 162 (GJ)
[49] In Interflora Inc Plc v Marks and Spencer Plc42 it was held that Marks and Spencer's advertisements did not
enable the reasonably wellinformed and reasonably attentive internet user to ascertain, or enabled them
only to ascertain with difficulty, whether the goods and services advertised originated from Interflora or from
Marks and Spencer. In the result, it was found that the use of the keyword "interflora" by Marks and Spencer
did adversely affect the function of the trade mark.
[50] The particular facts of this case must be highlighted. Interflora operated a wellknown flower delivery service
using a number of independent florists. Marks and Spencer operated its own internet delivery flower service.
The court held that in such circumstances there was a likelihood of confusion in that it was possible that a
significant number of consumers may be led to believe that there was a connection between the flower
delivery service offered by Marks and Spencer and that offered by Interflora. The finding was made on the
specific facts of that case and taking into consideration how the advertisement was presented.
[51] Insofar as the applicant relied extensively on Cosmetic Warriors this, too, is misplaced. The court in that matter
dealt with several complaints by Lush (which was owned by Cosmetic Warriors) that its trade mark "lush" was
being used by Amazon in its Google text. The first complaint involved visual use which, in view of the finding
that the alleged visual use in this matter constitutes a new cause of action, is not relevant. The second cause
of action related to the use of "lush" as a keyword where no reference was made to "lush" in the
advertisements but a consumer was directed to advertisements of products equivalent or similar to "lush".
The second complaint is on all fours with the facts of this case.
[52] In respect of this complaint the court found that internet users were accustomed to having to filter their
searches. Consumers were familiar with sponsored ads and are used to seeing them from competing
suppliers. The court quoted the 2004 case of Reed43 where the following was said:
". . . As anyone who uses internet searches knows, in addition to the results of a search under a particular name or
phrase, one often gets unasked for 'banner' advertisements. Most of the time they are nothing but an irritation and
are ignored. But you can, if you wish, 'clickthrough', ie click on the banner and be taken to the advertiser's site. . . .
The webusing member of the public knows that all sorts of banners appear when he or she does a search and they
are or may be triggered by something in the search. He or she also knows that searches produce fuzzy results
results with much rubbish thrown in. The idea that a search under the name Reed would make anyone think there was
a trade connection between a totaljobs banner making no reference to the word 'Reed' and Reed Employment is
fanciful. No likelihood of confusion was established."
[53] The court in Cosmetic Warriors with reference to keyword advertising, in distinguishing it from Interflora v Marks
and Spencer, held that:
"46.
Moreover, the evidence establishes that Lush are brand conscious and have made great efforts to build up a
reputation in the Lush name. In
Page 176 of [2015] 2 All SA 162 (GJ)
my judgment average consumers would expect an advertisement for Lush products to include some reference
to the Lush mark, some indicia which would distinguish that ad from the ads of others which he might expect to
see on the results page of a Google search.
47.
In Interflora v Marks & Spencer [2013] FSR 33 Arnold J held there to be infringement although the offending ad
made reference only to 'M & S Flowers Online' and not to 'Interflora'. But that was, in part, because Interflora
represents a network of flower shops and the court was not satisfied that the average consumer would
appreciate that Marks & Spencer were not members of that network. So I think that case is different on the
facts from the one before me.
48.
It will be recalled that in the example pleaded and referred to in paragraphs 9 and 10 above, there was an ad
for a third party as well as one for Amazon. In my judgment the presence of such other ads makes the position
even clearer. The average consumer could not reasonably fail to appreciate that the Amazon ad was just
another ad from a supplier offering similar products to those requested by the internet searcher. My conclusion
on this part of the case does not, however, depend on the presence of this other ad."
[54] It is common cause that foreign courts have distinguished between visual use of another's trade mark in
one's own advertisement and the use of another's trade mark as a keyword to trigger one's own
advertisement. What must be emphasised is that in all the foreign authorities on which the applicant relies,
there has been statutory registration of the relevant trade mark. Significantly, the applicant has elected to