A significant issue in this case, and one worth considering in many cases of potential infringement, is that concentra.com is Concentra Health Services’ home page. Preval’s CONCENTRA product page resided at regainyourmemory.com. People concerned with targeting Limbaugh’s “Concentra” advertiser likely knew one name only: CONCENTRA. Between the concentra.com domain name, Internet search results for “concentra,” and the fact that it is not a stretch to consider that a company called Concentra Health Services might be the source of a homeopathic “memory pill,” it is not surprising that Concentra Health ended up in the crosshairs of many folks. It isn’t right, but it isn’t surprising.
In my opinion, many people assume that a company advertising goods or services under a particular mark likely owns an obvious domain name that incorporates the mark. Trademark law permits Delta airlines, Delta faucets, and Delta power tools to coexist because there is little to no overlap or association amongst the three companies’ goods and services, but there is only one delta.com. While this does not mean that companies should be entitled to broader protections for simply owning a desirable domain name, it does suggest that brand owners should pay close attention to potentially infringing marks that are identical to (or phonetically identical to) domain names owned by the company. If another company hits the press in a bad way (think boycotts, recalls, investigations, etc.), will it end up at your company’s front door?
Cases of serious negative confusion, like the CONCENTRA case, are relatively rare, but it is a fact pattern worth considering when evaluating potential infringement.