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E-Commerce News
Adwords Constitute Commercial Use, But Not Confusion; No Constitutional Privacy Right In Social Security Numbers
April 10, 2007
ADWORDS CONSTITUTE COMMERCIAL USE, BUT NOT CONFUSIONA federal court in Pennsylvania has recently weighed in on the use of trademarks by a competitor as part of an advertising campaign. That court determined that the purchase of a competitor’s trademark to key pop up ads is a “use in commerce” in violation of federal trademark law. But the court went on to find that such a use does not create a “risk of confusion” so as to establish damages.
The case arose when Settlement Funding LLC purchased the terms "J.G. Wentworth" and "JG Wentworth" as part of Google Inc.'s AdWords program. Wentworth is a direct competitor of Settlement Funding. The Google Adwords program caused advertisements for Settlement to appear onscreen when Google users entered the terms “J.G. Wentworth” or “JG Wentworth.”
In reaching its decision, the Pennsylvania court declined to follow a line of cases which held that an “invisible use” of trademarks does not constitute a “use in commerce.” The court found that those cases did apply to the purchase or use of specific trademarked terms.
The Pennsylvania court found instead that the use of a competitor's trademark to trigger advertisements for itself, constitutes a use in connection with the sale or advertising of goods and services within the meaning of the Lanham Act.
That part of the finding was the end of the good news for Settlement, because the court went on to find that, as a matter of law, Wentworth’s keyword purchases were unlikely to create a likelihood of confusion among consumers.
The court disagreed with the contention that users were being "taken by a search engine" to a site similar to the one they were presumably looking for. According to the court, a link to the defendant's Web site is presented as one of many other choices for the user to investigate.
Under the facts before it, the court was unable to find a likelihood of confusion due to the defendant's use of meta tags or purchase of search keywords containing the plaintiff's trademarks.
As courts continue to grapple with the trademark implications of the Adwords program, it is becoming increasingly clear that the ultimate winner, as usual, is Google!
NO CONSTITUTIONAL PRIVACY RIGHT IN SOCIAL SECURITY NUMBERS
An Ohio Federal District Court has recently determined that individuals have no a constitutionally protected privacy interest in their social security numbers. The court rendered this ruling after concluding that privacy of social security number is not an interest that is "fundamental or implicit in the concept of ordered liberty."
The case arose from a speeding ticket. The plaintiff was issued a speeding ticket which a county clerk posted on its Web site. An individual used the social security number on the posted ticket to obtain fraudulent credit cards, and charge $20,000 worth of merchandise. Because the officer incorrectly recorded the social security number – it was off by one digit – the plaintiff was able to trace her identity theft to the posted ticket. She filed an action in federal court claiming that clerk violated her constitutional right of privacy by posting the speeding ticket.
In its ruling, the federal court distinguished previous Ohio and Sixth Circuit cases that recognized a privacy interest in social security numbers. In those cases, according to the court, the plaintiffs’ (who were police officers) faced a risk of bodily harm from the people who obtained the social security numbers. In the case before it, though, the court found “no equivalence to the potential and actual harm suffered by” the plaintiffs in the previous suits.
This case, however, involved less of a personal threat. "While the Court is not unmindful of the problems which may result from the release of personal information, it nonetheless is beyond dispute that plaintiff's injury from the release of information bears the Kallstrom and Bloch plaintiffs," the court said.
The absence of a risk of physical harm meant that the disclosure did not implicate a “fundamental right.” Accordingly, the plaintiff was unable to establish a constitutional violation and the court awarded summary judgment to the clerk.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.