Court Dismisses Trademark Claims Over Internal Search Results–Las Vegas Skydiving v. Groupon

March 13, 2022 · by Eric Goldman · in Marketing, Search Engines, Trademark

Las Vegas Skydiving Adventures offers tandem skydiving under the “Fyrosity” brand. It has never offered its services through Groupon. A search for “skydive Fyrosity” at Groupon says “No matching deals. You may also like ….” and produces search results for competitive skydiving vendors. (See the screenshot on the right, which I took on March 1 from my Santa Clara office). LVSA sued Groupon for trademark infringement. The court grants summary judgment to Groupon, applying the expedited confusion analysis from Multi-Time Machine v. Amazon.

Purchaser Care. Skydiving is expensive. More importantly, “skydiving service is uniquely dangerous. Because potential skydivers entrust their lives to the service provider, the service is ‘sophisticated’ in a way that the goods (watches) in Multi Time were not. Thus, a consumer is likely to exercise more caution in selecting a skydiving provider.”

Search Results Page Appearance. “each result on Groupon’s page was clearly labeled with the service provider’s name.” The fact that “its Fyrosity mark appears multiple times on the results webpage” is no different than the MTM case.

Actual Confusion. LVSA alleged no credible evidence.

The court summarizes:

The record may demonstrate that, on a regular basis…, prospective customers try to bargain with LVSA based on pricing found on Groupon. The record may likewise show that consumers sometimes mistakenly seek to redeem vouchers for other skydiving companies with LVSA….as a matter of law, a reasonably prudent consumer in this marketplace is unlikely to be confused as to the origin of the service offered.

Case citation: Las Vegas Skydiving Adventures LLC v. Groupon, Inc., 2022 WL 594833 (D. Nev. Feb. 28, 2022). Personnel note: LVSA’s attorney was Steve Gibson, who you might remember from his failures at Righthaven.

BONUS: Melwani v. Amazon.com, Inc., 2022 WL 670919 (W.D. Wash. March 7, 2022). Melwani sells products under the “Royal Silk” brand. Melwani complains that searches for “Royal Silk” on Amazon’s internal search tool produce search results pages that include items for third-party sellers and Amazon itself. For example, according to the complaint:

On August 19, 2020, Plaintiff searched for “Royal Silk” under all departments on Amazon.com, yielding 60 product listings, including “Sponsored” product listings—ads paid for by the seller. Of these sixty listings, 17 were for official Royal Silk products, 40 listings were totally unrelated to the query Royal Silk—of these 40, 8 were paid sponsored ads for sellers who purchased the keywords “Royal Silk” and 32 were for third party sellers who Plaintiff alleges “likely” purchased this keyword—the remaining 3 were third party infringers, unlawfully using or showing the words “Royal Silk” in their product listings.

Absent from this August 19, 2020, search was any mention of the Royal Silk Store or any product listings for Royal Silk pocket squares or handkerchiefs, of which there are allegedly over 200 product listings.

Melwani sued Amazon for trademark infringement, dilution, and more. With respect to the trademark claim, the court says the Ninth Circuit’s Multi-Time Machine v. Amazon case is “directly on point and forecloses Plaintiff’s ability to bring this claim as a matter of law.” The false designation of origin claim is similarly governed by the Ninth Circuit’s Lasoff v. Amazon ruling.

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Court Dismisses Trademark Claims Over Internal Search Results–Las Vegas Skydiving v. Groupon

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