Monday, October 17, 2016

Initial interest false advertising (aka bait and switch) in Google ads

Beacon Plumbing & Mechanical Inc. v. Sposari Inc., 2016 WL 5795282, No. C15-1613 (W.D. Wash. Mar. 17, 2016)

Beacon sued defendants, including Sposari, which does buisiness as Mr. Rooter Plumbing Services, for trademark infringement and dilution (federal claim dismissed) and related claims.  The internet ads at issue said “Call 24/7 Beacon Plumbing” and displayed the address “”  However, the ads eld to a website advertising “Mr. Rooter Plumbing.”  The court found that the false advertising allegations plausibly alleged materiality.  It was plausible that a consumer who clicked on this ad could experience actual confusion and “conclude that Beacon Plumbing and Mr. Rooter Plumbing are the same entity.” This mistake, “combined with intent to purchase plumbing services from Beacon Plumbing,” would likely influence a purchasing decision.  Though Beacon didn’t cite cases finding initial interest confusion cognizable as such for a false advertising claim, the argument made sense. (It’s also usually known as “bait and switch” in false advertising law.)

The ACPA claim failed, however, because “beacon” in “”—is a third-level domain, and third-level domain names aren’t within the ACPA’s reach.

The Washington Consumer Protection Act claim required, along with falsity causing harm to the plaintiff, a public interest impact.  A practice must have “the capacity to deceive ‘a substantial portion’ of the public.” Relevant factors include: “(1) Were the alleged acts committed in the course of defendant’s business? (2) Did defendant advertise to the public in general? (3) Did defendant actively solicit this particular plaintiff, indicating potential solicitation of others? (4) Did plaintiff and defendant occupy unequal bargaining positions?” Also, “intentional trademark infringement can satisfy the public interest impact element.” Given that (1) and (2) were allegedly present, and the allegations of intentional infringement, the court found that the CPA claim could continue.

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