1-800 Contacts Sues Competitors For Keyword Ads Despite Losing Similar Cases And Buying Keyword Ads Itself
from the please-explain dept
We keep hoping that companies will realize that suing over competitors buying ads on trademarked keywords will finally go away, after case after case after case has shown that it’s not a violation of trademark law. However, they just keep coming. The latest may be the most ridiculous, as described by Eric Goldman. 1-800 Contacts is suing competitor LensWorld for buying ads on the “1800Contacts” keyword. Again, assuming that LensWorld’s ads are clearly for LensWorld, then there shouldn’t be any chance of confusion and the case should be tossed out. However, what makes this case even more interesting is that 1-800 Contacts has already brought similar cases in the past — and lost them decisively. In fact, in that case, 1-800 Contacts seemed to have a stronger case, as it involved adware popping up full ads next to their website, rather than just keyword search ads. So it seems odd that 1-800 Contacts would try again — other than the fact that it’s trying in a different circuit.
However, what’s even more bizarre is that while 1-800 Contacts is suing, it has no qualms in doing the same thing itself. Yes, the company has a history of buying ads on the keywords of its competitors, which is part of the reason why the company lost the earlier case. Not only that, but when the state of Utah tried to put in place a law that would ban advertising on trademarked keywords, 1-800 Contacts was one of the companies that convinced Utah legislators that such a legislation was a bad idea, highlighting how the buying of trademarked keywords helped 1-800 Contacts promote its business. As Goldman says: “Hey 1-800 Contacts, maybe I’m missing something, but if you wanted to bring a keyword advertising lawsuit like this one, maybe you shouldn’t have badgered your legislators to remove a law that would have ensured your success in court!”