New keyword/use in commerce decision

Eric Goldman blogs so I don't have to! A couple of other points: (1) The court suggests some suspicion over whether the plaintiff actually has a valid mark in "Dating Ring," the term at issue, because there doesn't seem to be much evidence of use. (None in Google Images that I found, though plaintiff's website is at trademarkjewelry.com, which along with some of the text of the site suggests some sort of claim of right over the concept of rings exchanged between dating couples. Here's an interesting side question: defendant's petition for cancellation of plaintiff's registration has been suspended during the court case. Given how aggressive the TTAB has become on what counts as fraud on the PTO in a registration application, should a district court resolving a challenge to the validity of a registration apply the same standard? That might not be an issue here, since the issue appears to be whether plaintiff used the mark at all rather than using it on all the goods listed in the registration, but I do wonder.)

In any event, in the course of refusing to dismiss the ad text-based trademark claims, the court several times suggests that the plaintiff could be subject to sanctions if he lacks a valid mark or if he is ultimately unable to show that defendant used his mark in the text of its ads.

(2) Eric thinks that the court didn't understand what broad-matching was, but I saw no evidence of incomprehension -- the court seemed pretty clear that the reason Zales' website returned results for "dating ring" was that it did its best to find a match, in this case by returning results for "ring." The French might disagree, but returning results based on the generic portion of a mark can't be actionable under any theory I've seen a US court embrace.