keyword ad claim fails out of the gate, but bad (c) claim not yet challenged

Regalo Int’l LLC v. Aborder Prods. Inc, 2025 WL 2483167, No. 3:24-CV-03270-E (N.D. Tex. Aug. 28, 2025)

Eric Goldman on the keyword ad aspects of this case about pet and baby gates. Regalo alleged that Aborder sold “knock-offs of Plaintiffs’ patented safety gates” that are “marketed the same [as Regalo’s gates] by misusing Plaintiffs’ copyrighted photographs and federally registered trademarks and otherwise engaging unlawful, unfair competition.” This opinion doesn’t address the copyright infringement claims, though they seem like obvious, fee-shift-worthy junk to me. Crucially, despite referring to “trade dress,” there is no trade dress infringement count, nor does the complaint allege secondary meaning for the design of the gates.

When I read “copyright infringement,” I thought this would be bog-standard photo copying. But no, Regalo thinks it owns the idea of a picture showing a gate in a place you’d naturally put a gate, plus grateful female homeowner.

Regalo's "trade dress" (sic) in red boxes

Regalo photo

Regalo photo 2

Aborder gate with curved edges

Allegedly infringing Aborder photo 1

allegedly infringing Aborder photo 2

TM: Regalo tried to argue initial interest confusion based on defendants’ purchase of Regalos’ marks as ads in the Amazon eocosystem, but even in the Fifth Circuit, keyword advertising alone isn’t enough for IIC. There needs to be something else, such as a “click to call” ad leading to an extended conversation with a potential client—that is, something that approaches traditional bait and switch, with plausibly high sunk costs for the consumer.

The “something else” alleged here was (1) the visual similarity of the parties’ gates and (2) photos that “create product presentations that are confusingly similar to [Regalo’s] product listings.” The first is an unalleged product design trade dress claim, and the second is an unalleged packaging-type trade dress claim. Neither sufficed. The court found the allegations of confusing similarity conclusory. There were no allegations that the keyword ads were unlabeled (no screenshots were in or exhibits to the complaint) or that clicks resolved to deceptively generic purchase pages. In fact, Regalo alleged that clicks went to defendant’s product pages (labeled as such). General allegations that “many times” the sponsored ads “do not immediately make clear who the seller is” were insufficient to cross the line into plausibility.

The same vagueness doomed false advertising claims as to allegedly inauthentic customer reviews and systematic removal of negative reviews: “information and belief” wasn’t enough to call the reviews inauthentic or cherry-picked. Nor were the allegations that “a majority of [one defendant’s] reviews are rated with a scale of 1-5 without any comments, and nearly all of them positive” and that “over twenty of those reference Regalo and virtually all of them disparage or denigrate Regalo.” [But at least nobody disputed that fake reviews and review manipulation can be false advertising!]

The patent claims were plausible enough to need a claim construction hearing.