Competitive Keyword Advertising Permitted As Nominative Use–ElitePay Global v. CardPaymentOptions
22 06 2015I know, it’s getting repetitive blogging about competitive keyword advertising cases failing in court. But trademark owners keep bringing them, so I’ll keep blogging them.
The Ruling
The trademark owner does business as ElitePay Global. It provides “merchant payment solutions equipment, services and training business in the credit card processing industry.” The defendant runs a review website called CardPaymentOptions.com. It created a web page called “ElitePay Global Review” and included the trademark owner’s logo on the page and the trademark in the post-domain URL path. The website’s CEO wrote a review of the trademark owner and “rated Plaintiff’s service with a “C-” grade or 1.875 out of 5 stars.” (In response to this lawsuit, the defendant downgraded the trademark owner’s grade to an “F”). The page has over 40 other negative reviews and comments about trademark owner plus links to competitors’ websites. The defendant also bought keyword ads triggered by the phrase “ElitePay Global.”
On summary judgment, the court bypasses the standard prima facie trademark infringement elements and, relying heavily on the Toyota v. Tabari case, immediately jumps into a discussion about nominative use. The court runs through the standard Ninth Circuit three factors of nominative use:
Case citation: International Payment Services, LLC v. CardPaymentOptions.com, 2:14-cv-02604-CBM-JC (C.D. Cal. June 5, 2015)
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