Broad Matching Doesn’t Violate Injunction–Rhino Sports v. Sport Court
By Eric Goldman
Rhino Sports, Inc. v. Sport Court, Inc., 2007 WL 1302745 (D. Ariz. May 2, 2007)
I’ve lamented before that courts don’t seem to understand broad matching (see here and here). Today, I’m changing my tune. Broad matching arose squarely in this lawsuit, and the court nailed it. Hooray!
This case involves two competitors in the “recreational flooring business.” In 2002, Sport Court went after Rhino Sports for trademark infringement, and about 4 years ago, the parties settled the matter and agreed to a permanent injunction restricting Rhino Sports from “directly or indirectly using in commerce the mark SPORT COURT…on or in connection with the Internet, such as in an Internet domain name, as a sponsored link, in connection with an Internet web page, or as HTML code for an Internet website in any manner, such as the title or keyword portions of a metatag, or otherwise.”
Late last year, Sport Court discovered that Rhino Sports’ ad appeared as a sponsored link in response to the search term “sport court” (without quotations) and went to court claiming that Rhino Sport was in contempt. However, the ad copy didn’t contain the phrase “sport court,” and Rhino Sports said it bought the broad-matched terms “court” and “basketball court.” As the court correctly observes,
Whether a party appears as a sponsor depends upon a variety of factors, including the frequency with which the search term is used by consumers, the amount paid for and type of sponsorship, and the results of Google’s expanded broad match search. Because these factors may change, a party can appear as a sponsor link one day and not appear the next day, or even appear for terms that were never purchased.
As a result, the court has little problem rejecting Sport Court’s claim that Rhino Sports was in contempt. First, the literal terms of the injunction only restrict using the term “Sport Court…as a sponsored link.” Arguably, invisible keyword triggering using “Sport Court” wouldn’t violate this provision. Second, Rhino Sports didn’t buy the keyword “Sport Court,” and the injunction doesn’t restrict Rhino Sports’ purchase of generic terms like “court” or “basketball court.”
This court’s reasoning is solid, but I’m interested by the fact that the court didn’t discuss Rhino Sports’ ability to negative keyword match the phrase “sport court.” This would be easy for Rhino Sports to do and it would appear to solve Sport Court’s problem. Given that the court didn’t bail the plaintiff out here, plaintiffs drafting injunctions may need to update their boilerplate injunction language to contemplate the different technologies offered by the ad networks, both now and in the future.
Finally, since it was in court anyways, Rhino Sports took a stab at trying to modify the injunction to let it buy the keyword “sport court,” like numerous other Sport Court competitors are doing. Because the injunction was stipulated, the court wasn’t that excited about disturbing the initial agreement. Further, although there have been some important developments about keyword advertising and trademark use in commerce in other circuits (such as the Rescuecom and JG Wentworth cases), the court repeatedly notes that unsettled nature of Ninth Circuit law as another reason not to change the initial deal. I don’t blame the court for not wanting to touch the Ninth Circuit’s hairball jurisprudence with a ten foot pole, but I think this reinforces how important it is that the Ninth Circuit fix its mess.