When Not Using A Competitor's Trade Mark Might Still Infringe It - The Curious Case Of Negative Matching

The Courts have made it clear that Internet users are familiar with sponsored advertising, and that they are used to searching for a brand and being presented with ads from competitors.  The legal position on this practice in Europe is well-established: bidding on your competitors' trade marks as keywords is unobjectionable unless the ad does not enable normally informed and reasonably attentive Internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to in the ad originate from the proprietor of the trade mark.

But what if you don't bid on your competitors' trade marks at all.  Could you still be infringing?  That is one somewhat surprising potential effect of the Court of Appeal's decision in Interflora v Marks and Spencer resulting from the Court's views of a practice known as 'negative matching'.