Recently, the United States Federal District Court for the Southern District of New York issued a ruling that only the use of others' trademarks as bidding keywords does not constitute trademark infringement.
The plaintiff, 1-800 Contacts, is an online contact lens retailer whose website is 1800contacts.com and is the owner of trademarks such as "1800 Contacts" and "1800contacts.com." Defendant JAND, Inc., which operates under the name "Warby Parker," is an online and physical eyewear retailer that recently entered the online contact lens market, selling contact lenses through warbyparker.com and in stores. Defendant purchased Plaintiff's trademarks as keywords in the search engine auction ranking business, and when consumers searched for Plaintiff's trademarks, paid search results from Warby Parker's website were displayed at the top of the search results page, usually above the search results on Plaintiff's website, Mr. Yuan said. Warby Parker's landing page, which "fraudulently and intentionally mimics the look and feel of 1800contacts.com," misled consumers into believing that contact lenses sold on the site were related to the plaintiff, Thus "diverting a large number of potential consumers who would otherwise wish to visit the 1800contacts.com website", constituting trademark infringement and unfair competition.
With respect to trademark infringement, the court held,The main issue in this case is whether the defendant's conduct could lead to confusion among consumers about the origin of the goods. In this regard, the following factors are mainly considered: (1) the distinctiveness of the plaintiff's trademark; (2) the degree of trademark similarity; (3) commodity similarity, competitiveness and quality; (4) evidence of malice on the part of the defendant; (5) The maturity of consumers in the relevant market.
After analyzing the above factors one by one, the court held that, first of all, mature and rational consumers, when browsing the online marketplace, are very cautious before clicking on any website link. The contact lens is placed on the cornea, which may affect the vision of consumers, and it is a product with a high degree of consumer attention. As a result, consumers take the time to read and understand search results for relevant keywords before visiting the Warby Parker website landing page. Defendant's paid search results were already marked with the word "advertising," and Defendant's search results displayed at the top did not cite Plaintiff's trademark.
Second, mature and rational consumers are also very cautious when browsing online marketplaces after clicking on any website link, even though some consumers mistakenly click on Warby Parker's paid search results and inadvertently enter the Warby Parker website page. These consumers also take the time to carefully examine the content and layout of a website before taking further action.
Finally, mature and rational consumers are easy to quickly identify and correct errors even if they enter the wrong website. In other words, even if a consumer who intended to purchase Plaintiff's goods entered the Defendant's website, he would find the "Warby Parker" logo at the top and middle of the website page, and find that the Defendant's website is not similar to the Plaintiff's website page, and does not use Plaintiff's trademark, and thus choose to leave the Defendant's website.
Figure 1 Warby Parker website page
Figure 2 1-800 Contacts web page
On this basis, the Court found that the plaintiff had failed to demonstrate a likelihood of consumer confusion and upheld the defendant's motion for a judgment based on the litigation documents.
The case in question is 1-800 Contacts Inc. v. JAND Inc., No. 1:21-cv-06966, in the United States District Court for the Southern District of New York.
Source: Law360 Legal information platform
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