Catching Up on Two Keyword Ad Cases

October 6, 2024 · by Eric Goldman · in Marketing, Search Engines, Trademark

A couple of keyword ad cases from a couple of months ago.

Alsa Refinish LLC v. Walmart Inc., 2024 WL 3914512 (C.D. Cal. July 31, 2024)

The trademark owner Alsa sells chrome paint. Walmart doesn’t carry the trademark owners’ items. In searches for the trademarks in Walmart’s internal search engine, Walmart only shows unrelated items–not items from the trademark owner or any competitors. Alsa complains about the following screenshots:

The second screenshot is an organic search result–a dead-end for the trademark owner. The court says “Because Walmart does not pay search engines to return organic search results or index webpages, it does not “use” the marks in connection with the sale or advertisement of goods.” The court adds:

The Google search results are simply Walmart webpages that contain search results themselves. Any user can produce this type of page by navigating to Walmart’s website and typing a search term into the search box (i.e., searching for “Alsa Easy Chrome” on Walmart.com to produce a webpage with the words “Alsa Easy Chrome” in the URL). It is hardly surprising that a Google search for “walmart alsa easy chrome paint” returns an indexed search results page on Walmart.com for “Alsa Easy Chrome.” Plaintiff does not show that the alleged Marks appear anywhere else on Walmart.com apart from where they are inputted as search terms. Walmart’s website does not label any of its products under the alleged Marks or contain any infringing products. Ultimately, Plaintiff has pointed out no evidence that Walmart did anything to appear on these unsponsored Google search results

The first screenshot shows some keyword ads from Walmart–but the search query doesn’t contain the trademark. Instead:

In a single instance, Walmart’s automated bidding system produced a “keyword” for the term “Alsa Chrome Paint.” However, there were no impressions or clicks against the term “Alsa Chrome Paint,” meaning that no one clicked on or even saw Walmart’s advertisement.

Seriously, dude? This is the tree that fell in the forest that no one was around to hear. Fire, ready, aim. WTF are we doing in federal court???

The court responds simply: “Walmart’s unseen use of this mark could not have caused any consumer confusion whatsoever, let alone a likely risk of confusion.”

Walmart ads showed up for the “easy chrome paint walmart” query because Walmart purchases “easy,” “chrome,” and “paint” as keywords. “Walmart contends that the purchase of these Google advertisements does not constitute a “use” of Plaintiff’s Marks. The Court agrees.”

The court explains:

source confusion does not exist because, as Plaintiff itself admits, Walmart does not sell any products that infringe on Plaintiff’s Marks—whether on its website or in stores. Therefore, no consumer purchasing a product from Walmart will incorrectly assume that the product is “associated with” Alsa Refinish.

The initial interest confusion doctrine doesn’t fare any better. The trademark owner sells expensive items, so purchasers will be careful. Google’s ad labeling also favors Walmart. Cites to Sen v. Amazon and Boost Beauty v. Woo Signatures. Thus, “it is highly unlikely that a prospective consumer looking for Plaintiff’s “easy chrome paint” would be confused by Walmart’s advertisements and unintentionally navigate to Walmart.com.”

Summary judgment to Walmart. This seems like a great case for the court to issue a fee shift to Walmart given the trademark owner’s absolute failure to show any harm.

Bedrock Quartz Surfaces LLC v. Rock Top Holdings, LLC, 2024 WL 3599064 (D. Utah July 31, 2024)

The parties compete to sell countertops. Rock Top bought some competitive keyword ads triggered by “bedrock quartz,” such as:

When Bedrock Quartz complained, Rock Top’s team put the term on a negative keyword list. The court denies Rock Top’s motion for summary judgment.

Actual Confusion. “Rock Tops’ ads using the term “bedrock quartz” were seen by 2,518 people and 161 people clicked on the ads, for a click through rate of 6.4%.” 6.4% is a decent clickthrough rate, but per the Lens.com case, it’s well below the level of recognizable consumer confusion. The court acknowledges this in the footnotes, but still says this factor is neutral. Huh? It should be dispositive. Plus, FFS, we’re talking about a total of 161 clicks. Are the parties seriously going to litigate this to a trial? Remember: the only winnners of keyword ads lawsuits are the lawyers.

Mark Strength. The court says “Bedrock Quartz” is descriptive, and the plaintiff provided no evidence of consumer recognition, though it has spent $4M on marketing over the past 20 years. Good enough to make this factor weigh in favor of the plaintiff (huh?).

Consumer Care. The court says both parties only had lawyer arguments, not evidence, so this factor is neutral. Huh? Countertops are usually a multi-thousand dollar purchase, and they require significant consumer care to ensure the acquired countertops match their decor, have suffiicently durable surfaces, and fit the users’ space and size specifications exactly. How could this possibly be anything other than a situation where consumers are quite careful?

Defendant Intent. Apparently, selecting a rival’s trademark as a keyword is per se evidence of bad intent…even if it enhances competition and benefits consumers? Nice.

Product Similarity. The parties are direct competitors.

Mark Similarity. Citing Lens.com, the court says this factor is of minor relevance.

This is how the court decides to deny summary judgment on the likelihood of confusion. Wild.

Note that the plaintiff repeatedly invoked initial interest confusion, but the court essentially disregards those arguments.

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Catching Up on Two Keyword Ad Cases

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