Keyword Advertising Lawsuit Survives Motion to Dismiss on Genericness Grounds–FragranceNet v. Les Parfums
10 12 2009By Eric Goldman
FragranceNet.com, Inc. v. Les Parfums, Inc., 2009 WL 4609268 (E.D.N.Y. Dec. 8, 2009)
In 2007, FragranceNet suffered a stinging loss when it sued a competitor, FragranceX.com, for buying its trademarks as advertising keywords. Interpreting the 1-800 Contacts precedent before that was gutted by the Second Circuit’s 2009 Rescuecom decision, the district court judge decisively concluded that buying trademarked keywords did not constitute a use in commerce, ending FragranceNet’s lawsuit on a 12(b)(6) motion to dismiss.
Perhaps emboldened by Rescuecom’s holding that selling trademarked keywords is a trademark use in commerce. FragranceNet is back in court trying to stop another competitor from advertising on its trademarks.
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