Competitive Keyword Advertising Claim Fails–Reflex Media v. Luxy

The plaintiff runs Seeking Arrangements. The defense runs Luxy, a competitor. Earlier this year, I blogged a ruling holding that Seeking Arrangements’ trademark infringement claim against Luxy could proceed because Luxy included Seeking Arrangements’ purported trademarks in its keyword metatags. Yes, this was a 2021 decision.

The ruling I’m blogging today involves Luxy’s counterclaims against Seeking Arrangements for buying the Luxy keyword as the trigger for search engine ads. You can see Seeking Arrangements’ ad (highlighted) showing above Luxy’s own ad and mixed in with ads for unrelated products:

The court says:

Plaintiffs’ advertisement does not contain the word “Luxy” or appear to cause any more confusion than the other three advertisements. Even so, Defendant alleges that the title of Plaintiffs’ advertisement — “Luxury Dating Site – For Elite Relationships”—causes confusion because SeekingElite.com and OnLuxy.com offer the same services and because the word “Luxury” is similar to Defendant’s trademark. However, the word “Luxury” and Defendant’s trademark are not alike….the dissimilarity between the marks suggests that Plaintiffs did not intend to deceive the public by incorporating the word “Luxury” into the title of their advertisement.

Thus, Luxy’s counterclaim doesn’t sufficiently allege consumer confusion. This is consistent with many prior cases of competitive keyword advertising when the trademark isn’t displayed.

While the court got this ruling right, I’m still flummoxed by the metatags ruling. Combining the two decisions in the same case, this judge is saying that keyword metatags are potentially more problematic than keyword ads, even though we know that keyword metatags are categorically irrelevant to consumers. This makes no sense.

Unfortunately for us (but fortunately for the parties), the bad keyword metatags ruling won’t get fixed. The parties apparently settled the case this week–a wise decision, because they were making extraordinary efforts to tear each other up in court.

Case citation: Reflex Media Inc. v. Luxy Ltd., 2021 WL 5936974 (C.D. Cal. Oct. 3, 2021)

More Posts About Keyword Advertising

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Fifth Circuit Says Keyword Ads Could Contribute to Initial Interest Confusion (UGH)–Adler v. McNeil
Google’s Search Disambiguation Doesn’t Create Initial Interest Confusion–Aliign v. lululemon
Ohio Bans Competitive Keyword Advertising by Lawyers
Want to Engage in Anti-Competitive Trademark Bullying? Second Circuit Says: Great, Have a Nice Day!–1-800 Contacts v. FTC
Selling Keyword Ads Isn’t Theft or Conversion–Edible IP v. Google
Competitive Keyword Advertising Still Isn’t Trademark Infringement, Unless…. –Adler v. Reyes & Adler v. McNeil
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IP/Internet/Antitrust Professor Amicus Brief in 1-800 Contacts v. FTC
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