Judge Glasser ran through the “likelihood of confusion” factors (opinion pages 13 to 16) as has become de rigeur in all trademark cases even though they are ill-suited to deciding cases where the real issue is fair use (and despite Barton Beebe’s demonstration of the ways in which courts manipulate the test to justify pre-determined outcomes).  But the more important part of the opinion is its focus on whether a reasonable consumer, seeing the web pages at issue, would have any doubt about whether the pages they were reviewing were sponsored by Ascentive – and even a moron in a hurry would not be so confused (pages 16 to 20).   Ultimately, then, the issue comes down to a claim of initial interest confusion, but Judge Glasser rejected that argument (pages 20 to 28). 

Initial interest confusion is unlikely even on its own terms, both because PissedConsumer.com is not in competition with Ascentive’s web sites, and because search engines generally do not take keyword meta tags into account.  Moreover, the meta tags and title tags are used accurately in this case – they lead to pages that are about Ascentive’s products, albeit unflattering ones.  Judge Glasser also embraced later decisions that have questioned the very premises of the Ninth Circuit’s decision in its once-seminal Brookfield Communications decision, and have noted that the “harm” created by a misleading meta tag — being taken to a web site that the searcher finds unrelated to his actual search objectives — is easily remedied by clicking back to the search engine results.  Finally, Judge Glasser expressed impatience with the notion that trademark law should provide a remedy for unethical and excessive search engine optimization tactics — the search engines themselves take a dim view of being gamed, he noted, and their remedies can be much more effective than a court's.  In this instance, however, it is hard to see any impropriety in Opinion Corp.’s SEO techniques, because the complaints about Ascentive’s products are just what the average consumer might want to see when searching online for information to help decide whether to risk entrusting her credit card number to Ascentive’s billing department and her computer to Ascentive’s software.

Judge Glasser also rejected Ascentive’s contention that the display of advertising by its competitors adjacent to the critical comments violated its trademark rights (pages 28 to 32).  As on most advertising-supported web sites, advertising is placed at the discretion of the advertising service to which the space has been rented, so if Ascentive has a cause of action it would be against the advertising service. Of course, it did not sue that service because the remedy it seeks is the removal of critical comments, and the service cannot do that.