ORDER granting in part and denying in part defendants' Motion for Judgment; granting in part and denying in part plaintffs' Motion for Partial Summary Judgment. Excerpt:
In contrast to the deceptive conduct that forms the basis of a finding of initial interest confusion, S & L Vitamins uses Designer Skin?s marks to truthfully inform internet searchers where they can find Designer Skin?s products. Rather than deceive customers into visiting their websites, this use truthfully informs customers of the contents of those sites. Indeed, in practical effect S & L Vitamins invites Designer Skin?s customers to purchase Designer Skin?s products. The fact that these customers will have the opportunity to purchase competing products when they arrive at S & L Vitamins? sites is irrelevant. The customers searching for Designer Skin?s products find exactly what they are looking for when they arrive at these sites. S & L Vitamins is not deceiving consumers in any way. Thus, its use of the marks does not cause initial interest confusion. . .
In this Court?s view, there is a meaningful distinction between (1) using a mark to attract potential customers to a website that only offers products of the mark holder?s competitors and (2) using a mark to attract potential customers to a website that offers the mark holder?s genuine products as well as the products of competitors. As discussed above, in the latter situation no ?bait and switch? occurs.
In sum, S & L Vitamins? use of Designer Skin?s trademarks to accurately describe the contents of its websites does not cause initial interest confusion.
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Federal, 9th Circuit, Arizona |
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