Yet More Evidence That Keyword Advertising Lawsuits Are Stupid–Porta-Fab v. Allied Modular
Porta-Fab and Allied Modular compete in the modular building space, which has an average sales price of $32k. Allied purchased “PortaFab” as a broad match for keyword ads, showing ads like this (highlighting added):
As you can see, Allied’s ad copy says “Buy Portafab Today,” which might be confusing, despite other indicators that the source is Allied and the substantial purchaser care in decisions like this, unless “Portafab” has become the generic descriptor for this category of goods.
Because the ad copy includes the plaintiff’s trademark, the court says there are triable issues here: “Unlike in other keyword search cases where likelihood of confusion was not found, this case involves a competitor who did not just incorporate a competitor’s trademarked name as a search term, but rather used a phrase in its Google Ad that essentially told consumers it sold PortaFab products….accordingly, a reasonable jury could find that Allied’s advertisements are likely to confuse a reasonably prudent consumer as to whether Allied sells Porta-Fab products.” After this ruling sent the case to trial, the parties (wisely) settled rather than incur the costs of trial.
To many trademark owners, it’s a simple decision to sue when the advertiser includes the trademark in the ad copy. So why did I say the case was stupid? Well…
There were 2,494 Allied Google ad impressions with the term “Portafab.” Of these 2,494 impressions, there were approximately 85 to 102 clicks. None of the clicks led to sales. [emphasis added]
So, what exactly is the trademark owner fighting for here? Few consumers are clicking through the ads, and no consumer has yet spent any money on Allied, so there is no evidence of ACTUAL confusion or “diversion” or whatever fictional legal doctrine about consumer behavior the trademark owner is advancing. Some math: if Allied paid $10 for each click–an extremely high CPC–the total economic value of the ads at issue is about $1k. This is a bad ad buy by Allied, AND it’s a bad trademark enforcement decision by Porta-Fab. As I teach my students, Porta-Fab should have spent its enforcement budget on more marketing instead of more lawyers, which almost certainly would produce a higher ROI than this lawsuit did.
Case citation: Porta-Fab Corporation v. Allied Modular Building Systems, Inc., 2022 WL 4596646 (C.D. Cal. July 24, 2022). The CourtListener page.
More Posts About Keyword Advertising
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* Trademark Owner Fucks Around With Keyword Ad Case & Finds Out–Las Vegas Skydiving v. Groupon
* 1-800 Contacts Loses YET ANOTHER Trademark Lawsuit Over Competitive Keyword Ads–1-800 Contacts v. Warby Parker
* Court Dismisses Trademark Claims Over Internal Search Results–Las Vegas Skydiving v. Groupon
* Georgia Supreme Court Blesses Google’s Keyword Ad Sales–Edible IP v. Google
* Competitive Keyword Advertising Claim Fails–Reflex Media v. Luxy
* Think Keyword Metatags Are Dead? They Are (Except in Court)–Reflex v. Luxy
* 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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* The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads
* Rounding Up Three Recent Keyword Advertising Cases–Comphy v. Amazon & More
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* The Ongoing Saga of the Florida Bar’s Angst About Competitive Keyword Advertising
* Your Periodic Reminder That Keyword Ad Lawsuits Are Stupid–Passport Health v. Avance
* Restricting Competitive Keyword Ads Is Anti-Competitive–FTC v. 1-800 Contacts
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* Negative Keywords Help Defeat Preliminary Injunction–DealDash v. ContextLogic
* The Florida Bar and Competitive Keyword Advertising: A Tragicomedy (in 3 Parts)
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* Competitive Keyword Advertising Doesn’t Show Bad Intent–ONEpul v. BagSpot
* Brief Roundup of Three Keyword Advertising Lawsuit Developments
* Interesting Tidbits From FTC’s Antitrust Win Against 1-800 Contacts’ Keyword Ad Restrictions
* 1-800 Contacts Charges Higher Prices Than Its Online Competitors, But They Are OK With That–FTC v. 1-800 Contacts
* FTC Explains Why It Thinks 1-800 Contacts’ Keyword Ad Settlements Were Anti-Competitive–FTC v. 1-800 Contacts
* Amazon Defeats Lawsuit Over Its Keyword Ad Purchases–Lasoff v. Amazon
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* Court Dumps Crappy Trademark & Keyword Ad Case–ONEPul v. BagSpot
* AdWords Buys Using Geographic Terms Support Personal Jurisdiction–Rilley v. MoneyMutual
* FTC Sues 1-800 Contacts For Restricting Competitive Keyword Advertising
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* Texas Ethics Opinion Approves Competitive Keyword Ads By Lawyers
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* Keyword Ad Lawsuit Isn’t Covered By California’s Anti-SLAPP Law
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* Another Keyword Advertising Lawsuit Fails Badly
* Duplicitous Competitive Keyword Advertising Lawsuits–Fareportal v. LBF (& Vice-Versa)
* Trademark Owners Just Can’t Win Keyword Advertising Cases–EarthCam v. OxBlue
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* Florida Allows Competitive Keyword Advertising By Lawyers
* Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid
* Another Keyword Advertising Lawsuit Fails–Allied Interstate v. Kimmel & Silverman
* More Evidence That Competitive Keyword Advertising Benefits Trademark Owners
* Suing Over Keyword Advertising Is A Bad Business Decision For Trademark Owners
* Florida Proposes to Ban Competitive Keyword Advertising by Lawyers
* More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide
* Google’s Search Suggestions Don’t Violate Wisconsin Publicity Rights Law
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* Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights
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* With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue
* Google Defeats Trademark Challenge to Its AdWords Service
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