The US Court of Appeals for the Fifth Circuit affirmed that pay-per-click advertisers may be liable under the Lanham Act for “click fraud.” WickFire, LLC v. Laura Woodruff et al., Case No. 17-50340 (5th Cir. Feb. 26, 2021) (Owen, J.)

WickFire and TriMax Media are advertisers that compete in the pay-for-performance search engine marketing business, also known as pay-per-click marketing. In this type of marketing, every time a user clicks on an advertisement, the advertiser pays the search engine (i.e., Google) a small fee. If the user makes a purchase on the merchant’s site, the merchant pays the advertiser a commission. When a pay-per-click campaign runs smoothly, the advertiser pays a small amount for a click, the click results in a sale, and the commission to the advertiser is more than the advertiser paid for the click.

WickFire filed a lawsuit against TriMax, alleging that TriMax violated Section 43 of the Lanham Act by committing “click fraud” through repeatedly clicking on WickFire’s ads without any intent to make a purchase, and created false advertisements that were made to appear as though they belonged to WickFire, among other state law claims. Section 43(a) of the Lanham Act prohibits a person from making, “in connection with any goods or services,” a “false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which . . . is likely to cause confusion . . . as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities.” WickFire alleged that the ads included a trademark and links to a WickFire website designed to aggregate coupons for online merchants.

The case went to trial, and a jury found for WickFire with respect to the state law claims and the false advertising claim (although it did not award any damages for violation of the Lanham Act). The jury determined that TriMax misrepresented WickFire as the source of advertisements by placing ads containing identifying information distinct to WickFire in a manner that was likely to cause confusion. TriMax filed for judgment as a matter of law and for a new trial. The district court denied the motions and entered judgment. TriMax appealed.

On appeal, TriMax alleged that WickFire’s Lanham Act claim was foreclosed by the Supreme Court’s decision in Dastar v. Twentieth Century Fox. The Fifth Circuit disagreed. The Court explained that WickFire was not concerned with protecting an original idea, as Fox attempted to do in Dastar. Instead, WickFire was trying to protect the genuineness of its brand.

TriMax next argued that it was entitled to judgment as a matter of law because the jury did not have a legally sufficient evidentiary basis to find for WickFire. The Fifth Circuit thought otherwise, holding that it did not need to decide whether the evidence was sufficient as a matter of law because the jury did not award WickFire damages to the claim. The Court noted that since the jury found that there were no damages, WickFire could not be a prevailing party under the Lanham Act and the issue was moot.

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