Google’s Search Disambiguation Doesn’t Create Initial Interest Confusion–Aliign v. lululemon

July 25, 2021 · by Eric Goldman · in Marketing, Search Engines, Trademark

Aliign “is an event, lifestyle, and apparel company” allegedly with a first trademark use in 2011. Since 2014, they have sold a total of 7 units of apparel (5 of which were bought by the CEO’s friends). lululemon is the well-known yoga gear company. In 2008, it launched its successful “Align” yoga mat line. In 2015, it extended the “Align” mark to yoga apparel, which has generated $1B in sales. Aliign sued lululemon for trademark infringement. lululemon sought summary judgment.

I’ll concentrate on the initial interest confusion claim. The court says: “to survive summary judgment on an initial interest confusion claim, AAW must raise a question of material fact as to whether consumers searching for AAW’s product are confused and lured to lululemon’s products.” This sounds a lot like bait-and-switch, but the court still calls it initial interest confusion.

Aliign premised its IIC claim on Google search results for the phrase “aliign pants” and “aliign yoga pants.” In both cases, Google automatically substitutes “align” for “aliign” and shows the substituted results, while asking searchers if they want to “search instead” for “aliign.” Unsurprisingly, lululemon dominates the substituted search results.

If the searchers do choose the option to search “aliign,” the Aliign website is the first organic result but a lululemon ad appears above it.

The court treats this as a straightforward application of the MTM v. Amazon ruling. It analyzes two factors:

Purchaser sophistication. Both Aliign and lululemon sell premium yoga pants that cost 4x the pants you can buy at Target or Nordstroms, so the shoppers obviously are looking for something special.
Labeled search results. Google’s interface makes clear that it swapped the term and gives searchers an easy way to swap back. lululemon’s brand also displays prominently in its keyword ads. This clear labeling means it’s OK that lululemon also appears as the top ad on the “aliign” search results page.

Thus, “no reasonable juror could find that there is a likelihood that a reasonably prudent customer accustomed to online shopping will be confused by the Google search results.”

Implications

As usual, the “initial interest confusion” doctrine added nothing to the opinion. The court would still have to examine the ad contents, and the site it linked to, to evaluate consumer confusion. Then again, there’s almost no circumstance where “initial interest confusion” enhances a court’s analysis.

The court is essentially saying that Google’s prompt (“did you mean” X instead of Y?) helps consumers disambiguate Aliign and Align to realize they may be different. Thus, Google’s prompt dispels consumer confusion, not exacerbates it. For more on this, see my expert report in the Larsen v. Larson case.

Aliign spent a lot of money on this lawsuit, seemingly far disproportionate to the amount of money they expect to make from sales of their own goods (they made only 2 independent sales since 2014). If they really wanted to build their business, they could have invested that money into marketing instead of legal fees. The fact they chose to spend their money on their lawyers colors this lawsuit with a trollish hue.

Consistent with that, Aliign is spending more marketing dollars to appeal this lawsuit to the Ninth Circuit. As an outsider to this case, the First Rule of Holes comes to mind.

Case citation: Aliign Activation Wear, LLC v. lululemon athletica Canada Inc., 2021 WL 3117239 (C.D. Cal. June 7, 2021). The plaintiff is represented by Browne George Ross, the same law firm that brought the unsuccessful Prager U v. YouTube, Divino v. Google, and Newman v. Google cases.

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Google’s Search Disambiguation Doesn’t Create Initial Interest Confusion–Aliign v. lululemon

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