In a case involving the two leading structured settlement factoring companies, J.G. Wentworth and Peachtree Settlement Funding, the United States District Court for the Eastern District of Pennsylvania has ruled that use by Peachtree of Wentworth's trademark through Google's AdWords program and meta tags for Wentworth's website do not violate Sections 32(1) and 43(a) of the Lanham Act.
The websites in question are www.jgwfunding.com and www.jgwentworth.com.
The case (J.G. Wentworth, S.S.C. Limited Partnership v. Settlement Funding LLCE.D.Pa, 2007) is certain to generate debate not just among Internet legal experts but also within the structured settlement industry. It highlights significant disagreements among the courts and the need for better laws defining permissible business practices on the Internet.
The Lanham Act prohibits the use "in commerce" of protected rights "in connection with the sale, offering for sale, distribution, or advertising of any goods or services," or "in connection with any goods or services." 15 U.S.C. Sections 1114(1) and 1125(a)(1).
In reaching its decision: the court:
- Found that Peachtree's participation in Google's AdWords program and Peachtree's incorporation of Wentworth's marks in Peachtree's keyword meta tags did constitute trademark use under the Lanham Act;
- Agreed with Wentworth that "initial interest confusion" is actionable under the Lanham Act;
- Acknowledged, but "respectfully" disagreed with, conflicting authority from other circuits;
- Specifically disagreed with the United States Court of Appeals for the Ninth Circuit and cited its decision in Brookfield Communications, Inc. v. West Coast Entertainment Corp as "a mischaracterization of the operation of internet search engines";
- Reasoned that at no point are potential consumers "taken by a search engine" to Peachtree's website due to Peachtree's use of Wentworth's trademarks in meta tags;
- Emphasized instead that a link to Peachtree's website "appears on the search results page as one of many choices for the potential consumer to investigate";
- Noted that Wentworth did not allege that Peachtree's advertisements and links incorporate Wentworth's marks in any way discernible to internet users and potential customers;
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Concluded that:
- "Initial interest protection" is not applicable due to the separate and distinct nature of the links created on any of the search engine results pages in question; and
- Potential consumers have no opportunity to confuse Peachtree's services, goods, advertisements, links or websites for those of Wentworth.
- Granted Peachtree's motion to dismiss Wentworth's complaint because "no reasonable factfinder could find a likelihood of confusion under the set of facts alleged by plaintiff...".
Judge for yourself. Here is the Google search link for "J.G. Wentworth".
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