Organic search results aren't TM "use"

Alsa Refinish LLC v. Walmart Inc., 2024 WL 3914512, No. 2:23-cv-08536-SVW-MAR (C.D. Cal. Jul. 31, 2024)

In 2024, people are still bringing keyword advertising cases. Walmart wins summary judgment.

Alsa sells paint, including chrome paint, and claims common-law rights in  “Alsa,” “Alsa Chrome Paint,” “Alsa Easy Chrome,” “Easy Chrome,” “Mirrachrome,” and “Mirra chrome.” Walmart offers an online marketplace on which it and third parties sell products. There are no infringing products on Walmart.com. Thus, searching Walmart’s website with Alsa’s claimed marks results in search listings that aren’t related to Alsa.

Still, Alsa argued that Walmart was using its marks in advertising in confusing ways. Walmart does pay for keyword ads. It does not pay for organic search listings.  

Presumably because Walmart is a big seller, a search for the term “easy chrome paint walmart” results in several sponsored links to products on Walmart.com along with an organic link for a Walmart webpage named “Easy Chrome Paint,” and a search for “walmart alsa easy chrome paint” results in a Walmart webpage named “Alsa Easy Chrome.”

"easy chrome paint walmart" search with sponsored Walmart results and organic result

Google result for "walmart alsa easy chrome paint" showing organic Walmart result "Alsa Easy Chrome(256)"

But Alsa couldn’t identify any sponsored keyword ads that used Alsa’s marks. Walmart did bid $0.45 for the phrase “Alsa Chrome Paint,” but received zero impressions as a result. Alsa focused on organic search results. Those organic results were

the same webpages one would arrive at by navigating to Walmart.com and entering the alleged Marks (e.g., “Alsa Easy Chrome”) into Walmart’s own search bar. This happens because when a term is entered into the search bar on Walmart’s website, the URL (i.e., the web address) for the Walmart search results page will often include the terms that were searched. For example, when a user searches “Alsa Chrome Paint” on Walmart.com, the URL for the search results page is listed as follows: https://www.walmart.com/search?q=%22ALSA+CHROME+PAINT%22. A Walmart search results page such as this will periodically be “indexed” by Google so that the page appears on Google’s own search results.

If a user clicks on the organic result, they will go to the same page on Walmart.com that they would have gotten to by putting the same phrase in the Walmart search bar.

 Under 9^th Circuit precedent, a court can conclude that summary judgment in a keyword case is appropriate “without delving into any factors other than: (1) the type of goods and the degree of care likely to be exercised by the purchaser; and (2) the labeling and appearance of the products for sale and the surrounding context on the screen displaying the results page.”

First, “[b]ecause Walmart does not pay search engines to return organic search results or index webpages, it does not ‘use’ the marks in connection with the sale or advertisement of goods.” The fact that Google sometimes indexed search result pages on Walmart didn’t change that. “Plaintiff does not show that the alleged Marks appear anywhere else on Walmart.com apart from where they are inputted as search terms. Walmart’s website does not label any of its products under the alleged Marks or contain any infringing products. Ultimately, Plaintiff has pointed out no evidence that Walmart did anything to appear on these unsponsored Google search results.”

As to “Alsa Chrome Paint,” there were no clicks, meaning no infringement was possible.

As to Walmart-sponsored results to the query “easy chrome paint Walmart,” the court agreed with Walmart that those links were not triggered by use of “easy chrome,” but by the separate words “easy,” “chrome,” and “paint.” (I would think "Walmart" probably also played some role in triggering Walmart-sponsored results.) This too did not constitute a “use” of Alsa’s putative mark. Even assuming that it did, running sponsored ads in response to a Google search for “easy chrome paint Walmart” didn’t cause likely confusion.

There was no source confusion because Walmart didn’t sell any infringing products. There was also no initial interest confusion. Plaintiff’s cheapest product was $59, and “chrome paint products appear to be specialized or even ‘sophisticated’ items rather than everyday goods.” A reasonably prudent consumer accustomed to shopping online would exercise greater care. Moreover, each Walmart product in Google’s “sponsored” results was clearly labeled with the name of the product along with a photograph, and with the word “Walmart.” None of the sponsored products made any reference to the phrase “Easy Chrome” or the other putative marks. And finally, the sponsored results were “clearly distinguishable from objective search results.” Thus, confusion was unlikely.

Dilution also failed for want of “use.”