In a recent decision, Judge Vanessa L. Bryant shed some light on a significant new issue: trademark infringement in the world of internet keyword advertising. In a case with important implications for online marketing strategies, Judge Bryant denied Provide Commerce’s request for partial summary judgment against trademark owner Edible Arrangements, which had filed a suit for trademark infringement against one of its main competitors in fruit and gift basket sales.
With online advertising increasingly crucial to companies’ marketing strategies, many companies seek ways to ensure that their advertisements appear before as many interested consumers as possible. This sometimes takes the form of “bidding,” or paying fees to search engines to ensure that their advertisements appear when consumers search on particular relevant keywords. According to Edible Arrangements, Provide infringed Edible Arrangements’ trademark by placing “bids” on search terms that resemble Edible Arrangements’ mark, even though they do not describe any of Provide’s actual products. And Provide included in its ads terms very similar to Edible Arrangements’, such as “Edible Fruit Arrangements.” Edible Arrangements also asserted claims against Provide under the Anticyerbersquatting Consumer Protection Act, claiming that Provide engaged in “typosquatting” (a type of “cybersquatting”), or utilizing misspelled domain names similar to Edible Arrangements’ web address to direct traffic to Provide’s website. Continue Reading