Monday, 24 March 2008

Trademark Law: "Initial Interest Confusion" Doctrine Applied

Understanding Trademark Laws:

Technology & Marketing Law Blog: Adwords Ad Creates Initial Interest Confusion--Storus v. Aroa

Storus Corp. v. Aroa Marketing Inc., No. C-06-2454 (N.D. Cal. Feb. 15, 2008).

(Sorry for my delay blogging this one).

A federal district court has held that displaying a competitor's trademark in Adwords ad copy constitutes impermissible initial interest confusion, leading to a summary judgment win for the trademark owner. This is one of the first competitor-vs.-competitor search advertising cases where the plaintiff has won the trademark claims. This case also has an interesting and rare discussion about the trademark implications of a retailer’s internal search engine.

On the surface, this case looks problematic for the search
advertising industry. Any time a search advertising practice is deemed
infringing, it should promptly eliminate all similar ads from other
advertisers, taking a chunk of revenues out of search engine pockets.
Further, when advertisers are liable for trademark infringement, it
increases the risk that search engines will be contributorily liable
for those infringing ads.

... Aroa’s practices here (displaying a competitor’s trademark in the ad copy) are already restricted by all of the search engine trademark policies. Therefore, this ruling shouldn’t reduce much ad revenue for search engines.

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How to Trademark A Name?

  • How to Register a Trademark - USPTO Stopfakes.gov
    You can establish rights in a mark based on legitimate use of the mark. However, owning a Federal trademark registration on the Principal Register provides several advantages ... here is how.
  • Types of U.S. Trademarks - USPTO Stopfakes.gov
    Specific types of trademarks include: Service marks which identify and distinguish the source of a service rather than a product; Certification marks are used by someone other than its owner, to certify quality or other characteristics of such person's goods or services; Collective marks are trademarks or service marks used by the members of a collective group or organization.
  • Definition of a "Trademark"- USPTO Stopfakes.gov
    A trademark includes any word, name, symbol, or design, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.
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