Court Rejects Initial Interest Confusion Claims for Competitive Keyword Ads–Regalo v. Aborder

The litigants compete in the market for baby/pet gates. The incumbent sells under the brands “Regalo” and “Carlson.” The defendant “Aborder contends that the use of trademark advertising through the purchase of Amazon sponsored ads cannot constitute trademark infringement without additional actions.”

This court is bound by the unfortunate Adler decision from the Fifth Circuit, which venerated the initial interest confusion doctrine to salvage an otherwise obviously unmeritorious keyword advertising case.

To support their bogus initial interest confusion claims, the trademark owner points to: (1) the visual similarity between the gates (the court describes Aborder’s offerings as “knockoffs”) and (2) the similarity of the photos in the product listings. What does any of this have to do with initial interest confusion?? 🤷‍♂️

Nothing. The court is unimpressed:

Regalo does not allege that Aborder’s purchased keyword ads are unlabeled or that, upon clicking on the advertisement, customers are linked to deceptively generic purchase pages. To the contrary, Regalo alleges, regarding these ads that, “[m]any times, it is not immediately obvious from the sponsored ad who is selling the advertised product[,]” and that “[w]hen customers ‘click’ or select a sponsored ad, they are taken to the advertised product’s detail page.” Put another way, when a customer clicks on the advertisement, they are directed to the product page for Aborder’s advertised products—Regalo’s general statements that “many times” the sponsored ads do not immediately make clear who the seller is does not allege that in the specific ads purchased by Aborder are unlabeled or misleading.

Trademark claims dismissed. In other words, despite the Adler decision’s reliance on initial interest confusion to prop up bogus keyword ad cases, the court decided it had seen enough to clean out the stupid initial interest confusion claims.

Case Citation: Regalo International LLC v. Aborder Products Inc., 2025 WL 2483167 (N.D. Tex. August 28, 2025).

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