Contextual Marketing Practices

Market Analysis                

• Judge Rules in favor of home appliance manufacturer in license dispute

False Advertising/Confusion

• Health products company succeeds in false advertising/trademark confusion case

Secondary Meaning

• Allegation of likelihood of confusion rests on erroneous assumption of secondary meaning of lapsed mark

• Consumer confusion and secondary meaning established at trial

Trademark Confusion

• Renamed professional association results in marketplace confusion

• Fashion knock-offs result in consumer confusion

• New brand introduction in healthcare industry results in consumer confusion

• Trade dress of over-the-counter dietary supplement blurs the distinction between house and national brands

Search Engine Issues

• Confusion due to search engine use of trademarked terms as keywords

• Contextual marketing practices confusing to consumers

  Contextual marketing on the Internet often involves monitoring consumers’ behavior as they search the Internet:  the software that enables this monitoring is often referred to as “spyware.”  When the “spyware” notices that a search for a product or service relates to advertising that has been paid for by a third-party and which resides in the spyware’s database, the spyware serves a pop-up advertisement relevant to the search.  One allegation in this case was that consumer would be confused and believe that such pop-up advertisements were in some way connected with the website that they had searched for and clicked on.  The findings from a series of in-depth interviews designed to explore consumer beliefs and attitudes about the mechanisms underlying such contextual marketing practices led the parties to reach a settlement.  As a follow-up to this case, Mind/Share (through its client) provided input to a national Pew Internet and American Life Survey that has helped guide industry practices.

Other Issues

• License-holder violates terms of license resulting in tarnishment of brand