Another Failed Trademark Suit Over Competitive Keyword Advertising–JIVE v. Wine Racks America

The parties compete in the wine rack/wine cellar business. The defendant bought the plaintiff’s trademarks for keyword ads. The plaintiff alleges this creates initial interest confusion. The 10th Circuit’s Lens.com ruling governs this case. The court says that case makes this an easy defense win:

A consumer using the search term Vino Grotto is unlikely to be confused by the appearance of an advertisement for Defendants. As is demonstrated by Exhibit Q to the Motion, a consumer will be able to easily distinguish between the advertisement placed by Defendants and Plaintiff’s actual website. The advertisement is clearly marked as an ad, while Plaintiff’s website is identified directly below the advertisement. Thus, while certain likelihood of confusion factors would appear to support Plaintiff’s argument, its claim suffers from the same deficiencies identified by the court in 1-800 Contacts

The court also notes that the plaintiff didn’t show any evidence of actual consumer confusion. “As a result, Plaintiff has failed to show a likelihood of success on its trademark infringement claim as it relates to Defendants’ use of Plaintiff’s marks in its advertising.” The court denied the preliminary injunction.

Case citationJIVE Commerce, LLC v. Wine Racks America, Inc., 2018 WL 3873675 (D. Utah Aug. 15, 2018)

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