Ninth Circuit Tells Trademark Owners to Stop Suing Over Competitive Keyword Ads–Lerner & Rowe v. Brown Engstrand
This is a major ruling validating the legitimacy of competitive keyword advertising, which occurs when an advertiser purchases and displays ads triggered in response to third-party trademarks. Recently, the “Second Circuit Tells Trademark Owners to Stop Suing Over Competitive Keyword…
Second Circuit Tells Trademark Owners to Stop Suing Over Competitive Keyword Advertising–1-800 Contacts v. Warby Parker
Fifteen years ago, courts generally avoided categorical pronouncements about the legitimacy of competitive keyword advertising. That produced a string of waffly or irresolute rulings, such as the appellate rulings in Rescuecom v. Google (2d Circuit) and Rosetta Stone v. Google…
Catching Up on Two Keyword Ad Cases
A couple of keyword ad cases from a couple of months ago. Alsa Refinish LLC v. Walmart Inc., 2024 WL 3914512 (C.D. Cal. July 31, 2024) The trademark owner Alsa sells chrome paint. Walmart doesn’t carry the trademark owners’ items….
Competitor Isn’t Responsible for Google Knowledge Panel’s Contents–International Star Registry v. RGIFTS
This lawsuit involves competitors in the “star registry” niche 🙄. The incumbent is the International Star Registry of Illinois. The challenger is RGIFTS. The incumbent doesn’t like the competition and is clinging to its very descriptive trademarks to try to…
Section 230 Preempts Two More Harassment Lawsuits
Recapping a couple of doomed-from-inception lawsuits. Benedict v. Google LLC, 2024 WL 3427161 (D. Ariz. July 16, 2024) Lance Benedict is a musician. Someone attacked him on the heavy metal website “All That Shreds” (apparently gone now), posting allegedly doctored…
Heightened Constitutional Scrutiny is Not Required for Content-Based Trademark Registration Laws That Are Viewpoint-Neutral—Vidal v. Elster (Guest Blog Post)
By Lisa Ramsey, Professor of Law, University of San Diego School of Law The Supreme Court held in Elster that Section 2(c) is consistent with the First Amendment, but the Justices disagree on how to evaluate the constitutionality of trademark…
TIL: “Texas Tamale” Is an Enforceable Trademark–Texas Tamale v. CPUSA2
This case hit my alerts because of its discussion about keyword advertising, but first, I have to digest how the court got there. [Reminder: per Wikipedia, a tamale “is a traditional Mesoamerican dish made of masa, a dough made from…
Judge Hammers SEC for Lying to Get an Ex Parte TRO–SEC v. Digital Licensing
As I’ve recently mentioned, ex parte proceedings are error-prone because the judge hears only one side of the story and doesn’t get enough context to spot the possible flaws. This systematic–and avoidable–risk of errors has materially contributed to the SAD…
The SAD Scheme as an Institutional Failure
[These are my rough-draft talk notes from a recent workshop of trademark law professors.] The SAD Scheme involves a trademark owner suing dozens/hundreds of defendants using a sealed complaint, getting an ex parte TRO, and then having the online marketplaces…
Print-on-Demand Services Face More Legal Woes–Canvasfish v. Pixels
In the ongoing legal battles over print-on-demand services, RedBubble and (more recently) Printify have sometimes achieved favorable results by disaggregating all of the functions and acting solely as a marketing agent for the disaggregated vendors. These defense-favorable outcomes may work…