As we reported in March, the Ninth Circuit and several other Circuits have recently ruled that use of a rival company’s name in Adwords is not a trademark infringement. Now a former defendant has sued an “Adwords litigant” for violating anti-trust laws. MediaPost reports:
“This lawsuit is about 1-800’s bold and unlawful crusade to obtain or maintain its dominant position in the direct-to-consumer market for replacement contact lenses,” Lens.com argues in its complaint, filed this month in U.S. District Court in Nevada. “Notwithstanding its carefully crafted image, 1-800 has battled to censor and impede the universe of information that can be passed on to consumers; and conspired to ensure that consumers never taste the fruits of competition.”
Additionally, Lens.com asserts, 1800Contacts has unlawfully attempted to dominate the direct-to-consumer market for contact lenses by bringing or threatening trademark infringement claims against a host of competitors.
It is rare to see defendants strike back at plaintiffs outside the sanctions context. But now that the law is fairly clear on Adwords, we are likely to see this type of preemptive defense strategy more often.
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