Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC
The plaintiffs run several well-known databases, such as infoUSA and Salesgenie. The defendants are former employees of plaintiffs who split off and launched a competitive rival. The plaintiffs are upset that the defendants’ databases contain fake listings created by the plaintiffs, despite the marketing claim that the defendants’ databases are “verified.” The plaintiffs are also upset about what they perceive as various marketing overclaims that relate to the companies’ common history.
Defendants bought plaintiffs’ trademarks as AdWords. Like most recent cases, the trademark claims go nowhere (some cites omitted):
Infogroup argues that DatabaseUSA’s use of search engine ad placement services, triggered by Infogroup’s marks, is somehow infringing. The Court is unpersuaded. Although the use of such targeted advertising can be misused, it is generally understood that such tactics can be deployed consistently with the Lanham Act. See, CollegeSource, Inc. v. AcademyOne, Inc., 2015 WL 469041, at *11 (3d Cir. Feb. 5, 2015); 1–800–Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1242–45 (10th Cir.2013); Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1148–54 (9th Cir.2011); compare N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1222–23 (11th Cir.2008) (advertisers created likelihood of confusion by using competitors Web address and trademarks in their own advertisements). The advertisements at issue here, as displayed by Infogroup’s exhibits, do not use Infogroup’s marks in the advertisement itself, and each is either separated from the search results or plainly labeled as a sponsored advertisement. As the Tenth Circuit explained:
Perhaps in the abstract, one who searches for a particular business with a strong mark and sees an entry on the results page will naturally infer that the entry is for that business. But that inference is an unnatural one when the entry is clearly labeled as an advertisement and clearly identifies the source, which has a name quite different from the business being searched for.
Lens.com, 722 F.3d at 1245. And that could explain why Infogroup has presented no evidence to suggest that anyone has actually been confused by the advertisements, or is likely to be. Having considered “(1) the strength of the mark; (2) the evidence of actual confusion; (3) the type of goods and degree of care likely to be exercised by the purchaser; and (4) the labeling and appearance of the advertisements and the surrounding context on the screen displaying the results page,” the Court finds that Infogroup has not shown a likelihood of success under the Lanham Act based on DatabaseUSA’s search engine advertisements.
There are several other interesting nuggets in this opinion:* the plaintiffs claimed the fictional listings showing up in the defendants’ databases provided evidence of trade secret misappropriation. But web scraping can’t be trade secret misappropriation when it involves publicly accessible data because, by definition, that data can’t be a trade secret any more. The court concludes: “to the extent that Infogroup’s motion is focused on “webscraping,” such conduct is not unlawful under Nebraska [trade secret] law.” I just did a more complete update on scraping law.
* the defendants’ representations that they had “95% Accurate, Triple–Verified Database” was puffery; or at minimum was not false because the inclusion of plaintiffs’ fake listings wasn’t inconsistent with the “verified” representations.
* the court says that a departed employee “is entitled to accurately describe his experience in the industry when marketing his company’s products and services,” so referencing a past employer’s trademark as part of the person’s employment history wasn’t a false association. Compare my discussion about the Robert Half case.
* Although the court sides with the defense consistently, it does tell the defendants that some of their claims may be misleading, so the court says “DatabaseUSA would be well advised to knock it off.” I can’t recall another time I’ve seen a judge use this informal colloquialism as an admonishment. However, I bet judges silently think this many, many times a day during courtroom proceedings.
Case citation: Infogroup, Inc. v. DatabaseLLC, 2015 WL 1499066 (D. Neb. Mar. 30, 2015)
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