Mixed Ruling in Competitive Keyword Advertising Case--Goldline v. Regal

Mixed Ruling in Competitive Keyword Advertising Case–Goldline v. Regal

Photo Credit: In the Garbage Can // ShutterStock

Photo Credit: In the Garbage Can // ShutterStock

The lawsuit’s principal participants are rivals in the precious metals and coin industry. The defendant organization, Regal, has an affiliate program, and it appears that some affiliates bought competitive keyword advertising using the plaintiff Goldline’s trademark. The ruling is on Regal’s motion to dismiss, and the judge’s overly pithy opinion raises as many questions as it answers. The court based its ruling on the following facts alleged in the complaint:

According to Plaintiff, Defendants purchase advertising keywords that include the GOLDLINE Marks so their websites will appear when search terms intended for Plaintiff are entered in the search engine. Many of the search results are not identified as ads. The purpose of the affiliates’ websites is to divert customers away from Plaintiff and other competitors, toward Regal. To that end, Regal prepares for its affiliates’ use, scripts and website materials that purportedly offer objective, independent evaluations and facts related to precious metal dealers. These
materials allegedly infringe on the GOLDLINE Marks. The materials also allegedly offer endorsements for Regal; false information and
statements about the independent and unbiased views of the reviewer; and false and disparaging information about Plaintiff, including customer complaints, pending litigation, and poor consumer and industry ratings.

The court dismisses the Lanham Act trademark and false designation of origin claims:

While the allegations and attached exhibits indicate that Defendants use Plaintiff’s marks, there is simply nothing stated, that if deemed true, constitute commercial use that would likely cause confusion as to the origin or affiliation of Regal’s products or services. In fact, the allegations either state directly, or create a strong inference, that the purpose of Defendants’ use of the marks is to disparage Plaintiff and endorse Regal. Taken as true, such conduct would seemingly distinguish Regal’s products from Plaintiff’s, as opposed to causing customers confusion as to the origins of the two products.

For this reason, I’m counting this case as yet another win where defendants defeated a trademark claim over competitive keyword advertising–a streak of defense wins that I think goes back to 2011. The court sidesteps the advertiser-affiliate interplay, so unfortunately we don’t get any insights into that issue.

Despite this good news, the court says a number of other claims survive the motion to dismiss, including:

* false advertising and unfair competition
* RICO/civil conspiracy
* defamation

Given the court’s inscrutable opinion, however, it’s unclear which (if any) of these claims survive solely due to the competitive keyword advertising aspect of the plaintiff’s allegations. At minimum, the defamation claim appears fairly clearly to be based on ad copy. Still, I imagine trademark plaintiffs suing over competitive keyword advertising will think about whether these alternative claims (including normally junky claims like RICO and civil conspiracy) might be worth a stab.

Case citation: Goldline, LLC v. Regal Assets, LLC, 2015 WL 1809301 (C.D. Cal. April 21, 2015)

Some Related Posts on Keyword Advertising

* Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC

* Damages from Competitive Keyword Advertising Are “Vanishingly Small”

* More Defendants Win Keyword Advertising Lawsuits

* Another Keyword Advertising Lawsuit Fails Badly

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

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

* Want To Know Amazon’s Confidential Settlement Terms For A Keyword Advertising Lawsuit? Merry Christmas!

* Florida Allows Competitive Keyword Advertising By Lawyers

* Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid

* Another Keyword Advertising Lawsuit Fails–Allied Interstate v. Kimmel & Silverman

* More Evidence That Competitive Keyword Advertising Benefits Trademark Owners

* Suing Over Keyword Advertising Is A Bad Business Decision For Trademark Owners

* Florida Proposes to Ban Competitive Keyword Advertising by Lawyers

* More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide

* Google’s Search Suggestions Don’t Violate Wisconsin Publicity Rights Law

* Amazon’s Merchandising of Its Search Results Doesn’t Violate Trademark Law

* Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights

* With Its Australian Court Victory, Google Moves Closer to Legitimizing Keyword Advertising Globally

* Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie

* Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit

* With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue

* Google Defeats Trademark Challenge to Its AdWords Service

* Newly Released Consumer Survey Indicates that Legal Concerns About Competitive Keyword Advertising Are Overblown