Wednesday, December 17, 2008

Fake gripe sites

The Consumer Law & Policy blog discusses an instance of arguably deceptive advertising using the trademark owner's own mark, in a critical context, to draw searchers to an owner-run site that speaks favorably of the trademark owner. It's not preposterous to think that this could be false advertising--indeed, some trademark doctrines, like naked licensing, are concerned with false promises made by uses of marks. But I'm not sure that there is significant, extended consumer deception--clicking back will probably allow the interested consumer to find the actually critical sites--and I'd much prefer courts to hold every plaintiff, especially trademark owners, to a standard that requires a showing of more than brief clickthrough confusion.

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