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Consumer confusion matters in some advertising trademark cases

When California consumers enter keyword searches based on trademarked terms into a search engine, they might see results from competitors of the trademark owner. Previous legal cases have claimed unsuccessfully that competitors bidding on trademarked terms for keyword advertising campaigns have infringed upon the trademark holders. The courts have heard multiple cases of this type and consistently ruled that the competitors did not infringe upon trademarks because the search results did not confuse consumers.

Confusion among consumers represents a pivotal factor in trademark infringement cases. The latest case specifically cites the principle of consumer confusion. The case arose from an attorney who has trademarked several variations of the word "hammer" as part of his personal brand. The keyword advertising campaigns at issue in his lawsuit target mobile customers. The search results include the click-to-call feature. According to his lawsuit, this sows confusion in consumers' minds because they searched for him under his trademarked identity and then see ads linked to a call center for other attorneys.

His lawsuit asserts that the competitors are taking advantage of the terms associated with his brand to trick consumers. Additionally, the keyword advertising campaigns by competitors are raising prices for him to bid on his own trademarked terms for his advertising purposes.

The outcome of this case remains uncertain because trademark infringement cases often depend on nuanced interpretations of small details. An owner concerned about infringement might want a legal opinion about how to proceed. An attorney might review documentation about the ownership of intellectual property and develop a strategy for promoting the client's position. Attorney-led negotiations with the opposing party might settle the problem. Otherwise, an attorney might initiate trademark infringement litigation.

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