In Storus Corp. v Aroa Marketing, the Ninth Circuit determined that the defendants use of the plaintiff's mark in connection with Google AdWords is infringing. The theory forming the backbone is called the "intial interest confusion", but the real test which brought down the flag for the defendants is something known as the "controlling trioka or the internet trinity"!!!
Out of the eight Sleekcraft Factors, the three crucial ones are “(1) the similarity of the marks; (2) the relatedness or proximity of the two companies’ products or services; ... (4) the marketing channels used." Having brushed off the issue of validity of the plaintiff's trademark by finding no "issue of material fact", the Court determined that the defendants failed to prove that their intent was not to divert consumers by using the plaintiff's mark in the AdWords.
However, an interesting comment on the evidentiary requirement has been written by Eric Goldman where he questions the threshold for satisfying such a requirement and if one does exist at all.
Out of the eight Sleekcraft Factors, the three crucial ones are “(1) the similarity of the marks; (2) the relatedness or proximity of the two companies’ products or services; ... (4) the marketing channels used." Having brushed off the issue of validity of the plaintiff's trademark by finding no "issue of material fact", the Court determined that the defendants failed to prove that their intent was not to divert consumers by using the plaintiff's mark in the AdWords.
However, an interesting comment on the evidentiary requirement has been written by Eric Goldman where he questions the threshold for satisfying such a requirement and if one does exist at all.
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