As a general rule, all advertising copy should be reviewed by a qualified intellectual property lawyer to avoid false, misleading, or even improperly confusing language which could lead to false advertising, unfair competition, or traditional trademark infringement problems. CJ Products LLC v. Snuggly Plushez LLC, 2011 WL 3667750 (E.D.N.Y. Aug. 22, 2011), underscores the importance of this type of review in the internet marketing (read: adwords) context.
A brief summary of the case: Plaintiff, the original producer of Pillow Pets sued defendants, producers of knock-off pillow pets which they sold via their website PillowPets.Co, for copyright infringement (the obvious claim), false advertising, and false designation of origin (a.k.a., a type of trademark infringement).
The Court ripped into defendants for making three apparently false claims on its website as well as in the tags affixed to its products: “As Seen on TV” — when the product wasn’t marketed on TV; “claims of authenticity” when, in fact, the product was a rip-off of plaintiff’s line; and defendants also quoted a favorable product review from plaintiff’s website for their own product.
The above, all seemingly innocuous (except maybe the claims of authenticity which is fairly straight-forward trademark infringement) would have been caught by proper legal review.
The Trademark Infringement Claims
Aside from the obvious similarity of plaintiff’s registered trademark My Pillow Pets(R) and defendant’s use of “Pillow Pets,” the Court went into a detailed analysis of the implications defendant’s Google Ads campaign.
Defendant placed the following ads:
Official PillowPets.CO- Soft Chenille Plush Pillow Pets
Low Prices, New Styles Now in stock
Official Site. SuperSoft chenille plush pillow pets Now in Stock!
While courts have, in past, gone to great lengths to point out that relatively sophisticated online consumers are unlikely to be confused by this type of behavior, the Court found against defendants on this one probably because (1) there was evidence of actual confusion and (2) the Court already viewed defendants’ other actions to be highly questionable.
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