Another NY Court Says Keyword Triggering Isn’t TM Use in Commerce–Site Pro-1 v. Better Metal

By Eric Goldman

Site Pro-1, Inc. v. Better Metal, LLC, 06-CV-6508 (ILG) (RER) (E.D.N.Y. May 9, 2007)

The possible rift between the Second Circuit and other circuits on keyword triggering and trademark use in commerce may be widening. The latest ruling from a Second Circuit court (in this case, the EDNY) votes that keyword triggering and metatag usage isn’t a trademark use in commerce, ending the plaintiff’s case on a motion to dismiss. The court says:

The key question is whether the defendant placed plaintiff’s trademark on any goods, displays, containers, or advertisements, or used plaintiff’s trademark in any way that indicates source or origin. Here, there is no allegation that Better Metal did so, and therefore no Lanham Act “use” has been alleged. Indeed, the search results submitted as an exhibit to the complaint make clear that Better Metal did not place plaintiff’s SITE PRO 1® trademark on any of its goods, or any advertisements or displays associated with the sale of its goods. Complaint, Ex. B. Neither the link to Better Metal’s website nor the surrounding text mentions SitePro1 or the SITE PRO 1® trademark. The same is true with respect to Better Metal’s metadata, which is not displayed to consumers.

Right. It’s very nice to see the court reject the trademark claim on competitive metatag usage; the more standard “metatags = infringement” proposition has bothered me for years. And it’s nice to have another vote that competitive keyword advertising isn’t actionable. However, at this point, I don’t feel all that confident that either result is likely to persuade future judges outside a Second Circuit jurisdiction, so consider this just another vote in a very divided poll.

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