More Defendants Win Keyword Advertising Lawsuits

6 04 2015

I’m reporting results in keyword advertising lawsuits as I see them. TL;DR: defendants keep winning. Two more rulings supporting that proposition:

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Another Keyword Advertising Lawsuit Fails Badly

23 01 2015

 

This case is so pathetic, it probably only warrants a tweet. The TL; DR version: another trademark owner initiates a lawsuit over keyword advertising and gets crushed in court. The end.

The antagonist is a Florida van rental service operating under several brands. The services include special transportation services for people with various ailments. The defendant, apparently providing similar or rival services, bought Google AdWords on several common phrases that overlapped with the antagonist’s brand names. The defendant also used Google’s dynamic keyword insertion tool, so the keywords–overlapping the antagonist’s brand names–showed up in the ad titles.

Case citation: Florida Van Rentals, Inc. v. Auto Mobility Sales, Inc., 2015 WL 179294 (M.D. Fla. Jan. 14, 2015).

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Trademark Owners Just Can’t Win Keyword Advertising Cases–EarthCam v. OxBlue

28 11 2014

I have repeatedly observed that trademark owners routinely lose their lawsuits against advertisers who buy their trademarks as advertising keywords. (This is in addition to the futility of bringing trademark lawsuits against search engines, which almost no one does any more). I can’t recall the last time that I saw a trademark owner win a keyword advertising lawsuit; since the Network Automation case, those wins have been scarce.

Today’s case involves two companies in the security camera business. EarthCam initiated a wide-ranging trade secret, CFAA and copyright lawsuit against OxBlue. OxBlue scorch-earthed its response to EarthCam with a panoply of counterclaims. As an outside observer, it’s always fun to see competitors locked in a death match in court. As one of the litigants, not so much.

Let’s focus on OxBlue’s trademark counterclaim. For a few months in 2010, an EarthCam subsidiary, Work Zone Cam, purchased “oxblue” as part of its keyword advertising campaign. OxBlue’s trademark infringement claim goes nowhere:

OxBlue has not addressed any of these factors, let alone presented any evidence of a likelihood of confusion based on these factors. There is no evidence of the labeling and appearance of Work Zone Cam’s advertisements and the surrounding context of the screen displaying the search results. Nor is there any evidence in the record on how often customers were lured to the Work Zone Cam’s website when they searched for OxBlue on the Internet. See 1–800 Contacts, 722 F.3d at 1244 (holding that there was no likelihood of “initial interest confusion” because an expert report showed that customers clicked on the defendant’s advertisement only 1.5% of the time that an advertisement was generated by an infringing keyword search term). No evidence has been presented that would allow the Court to properly evaluate OxBlue’s trademark infringement claim. OxBlue’s trademark infringement claim based on “initial interest confusion” is required to be dismissed because OxBlue failed to address or present evidence on any of the factors relevant to whether there is a likelihood of confusion.

The associated false designation of origin claim fails along with it.

Here’s some of the several possible contributing factors to this ruling:

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Duplicitous Competitive Keyword Advertising Lawsuits–Fareportal v. LBF (& Vice-Versa)

24 11 2014

 

OK, let me offer a proposition that seems so obvious to me that I feel silly saying it. If you buy your competitor’s trademarks as keywords, it’s not advisable to sue your competitors for buying your keywords. Yes? Are you with me? Yet, for reasons I can’t fathom, I’ve seen violations of this common-sense principle multiple times over the years.

The participants in today’s case are travel aggregators Fareportal, which runs the dubiously named cheapOair.com, and LBF Travel, which runs SmartFares and Travelation. Last year, Fareportal kicked off the litigation party by suing LBF for buying competitive keyword advertising on Fareportal’s trademarks. LBF retaliated by counter-suing Fareportal for its competitive keyword advertising purchases. Now what–mutually assured destruction?

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Florida Drops Ill-Conceived Proposal To Ban Competitive Keyword Advertising By Lawyers (Forbes Cross-Post)

30 12 2013

In March, the Florida State Bar’s Standing Committee on Advertising proposed an ethics opinion (Proposed Advisory Opinion A-12-1). The opinion was designed to help Florida lawyers understand what they could ethically do with online marketing. It targeted a melange of now-outdated search engine optimization (SEO) practices, such as hidden text and keyword metatags. It also restricted competitive keyword advertising–”[l]awyers may not purchase the name of another lawyer or law firm as a key word in search engines”–even though it’s becoming increasingly clear over the years that such competitive keyword advertising purchases are legal and legitimate (see, e.g., Habush v. Cannon). Rather than enlighten attorneys about their ethical obligations, this proposal was both hopelessly antiquated and potentially detrimental to legitimate competition.

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Keyword Advertising Lawsuits Against Search Engines Mostly Tossed–Parts[.]com v. Google and Yahoo

11 12 2013

I know of only two pending trademark lawsuits against search engines for selling trademarked keywords: Parts.com and Carla Ison. Ison’s lawsuit has been dismissed and is on appeal, where it will be crushed. This week, Parts.com’s lawsuits against Google and Yahoo were also mostly dismissed, but Parts.com can refile some of their lawsuit–and I’m sure they will, despite the obvious futility.

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Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid

27 11 2013

November 19, 2013 · by

Infostream Group Inc. v. Avid Life Media Inc., 2013 WL 6018030 (C.D. Cal. Nov. 12, 2013)

Infostream claims trademark rights in the terms “WhatsYourPrice.com” and “Seeking Millionaire,” and it alleged that Avid (operator of the notorious website AshleyMadison.com among others) bought those terms as keywords in Google AdWords to promote its CougarLife.com, EstablishedMen.com and ArrangementFinders.com websites. In light of the Network Automation case the court relies upon, Infostream’s trademark lawsuit over the AdWords purchases goes nowhere. Calling Infostream’s arguments “self-defeating,” the court says:

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More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide (Forbes Cross-Post)

26 11 2013

By Eric Goldman

I’ve repeatedly asserted that the trademark battles over keyword advertising are near the end.  As further evidence of that, recently Google ($GOOG) liberalized its international trademark policy for advertising via AdWords.   Previously, Google allowed trademark owners to block advertisers from bidding on their trademarks in Australia, Brazil, China, Hong Kong, Macau, New Zealand, South Korea, and Taiwan.  Now, Google has reversed its policy in those countries, meaning that (as Google told me) “Google will no longer restrict advertisers from bidding against trademark keywords, worldwide.”  (Google had previously liberalized its trademark policy in most other countries in 2010).  Google will maintain regional differences in restrictions on when trademark owners can block their trademarks from appearing in the ad copy.

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Competitive Keyword Advertising Lawsuit Survives Motion to Dismiss–Elcometer v. TCQ-USA

24 11 2013

By Eric Goldman

Elcometer, Inc. v. TQC-USA, Inc., 12-cv-14628 (E.D. Mich. April 9, 2013)

The parties compete in the “thickness gauge” industry. The defendants sell the brand “Paintmeter.” Defendants allegedly bought the AdWord keyword on the rival brand “Elcometer” and ran the following ad:

Elcometer Meters & Rentals * Paintmeter.com
www.paintmeter.com/
Call 18009742492 We Sell PaintMeters & Rent Coating Inspection Equipment

The plaintiff alleges that potential customers who clicked on the link or called the 800 number were given more information that perpetuated possible confusion about the relationship between Elcometer and Paintmeter.

The court says that the plaintiff properly pled trademark infringement, Lanham Act false advertising and a violation of the Michigan Consumer Protection Act, and therefore it denied a motion to dismiss. The court also rejected the manufacturer’s effort to avoid responsibility for its distributors’ conduct.

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Suing Like It’s 2009: Parts.com Sues Google and Yahoo for Keyword Advertising

24 11 2013

By Eric Goldman

Parts.com v. Google, 3:13-cv-01074-JLS-WMC (S.D. Cal. complaint filed May 6, 2013); and
Parts.com v. Yahoo, 3:13-cv-01078-AJB-JMA (S.D. Cal. complaint filed May 6, 2013)
_____

In the immediate wake of the Second Circuit’s Rescuecom ruling in 2009, about a dozen trademark owners sued Google for selling keyword ads.

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