*Multi Factor test for the Likeliness of Confusion

multi-factor-test.036Goldman recently posted about a the Hearts on Fire Co v BLue Nil Inc decision in which the District Court of Massachusetts brought forward in late March a 7 factor test to check for a likeliness of confusion (page 23):

(1) the overall mechanics of web-browsing and internet navigation, in which a consumer can easily reverse; [saying e.g. that surfing on the internet is something else then driving on a highway]

(2) the mechanics of the specific consumer search at issue; [looking at how cosumers search]

(3) the content of the search results webpage that was displayed, including the content of the sponsored link itself; [Top-Ad, Side-Ad; Adv+, Adv-]

(4) downstream content on the Defendant’s linked website likely to compound any confusion; [quality of the landing page]

(5) the web-savvy and sophistication of the Plaintiff’s potential customers; [commercial search v. consumer search; PEW-studies… for more information on this topic please see my previous post here]

(6) the specific context of a consumer who has deliberately searched for trademarked diamonds only to find a sponsored link to a diamond retailer; and, in light of the foregoing factors; [did the consumer really search for the trademarked good or was he looking for something similar and just used the trademark as a synonym]

(7) the duration of any resulting confusion; [just in case the consumer wa ever confused, when should it have been clear to him]

Although I fully agree with Goldman that courts usually lack the facts to answer all the questions but I think the test points into the right direction as it clear states that e.g. surfing the internet and using search engines can NOT be directly compared to following signposts a motorway. That’s good as the court then at least really have to investigate into the matter and not just merely state somewhere  that e.g. “Top-Ads are to be seen as part of the search result” (view of the Austrian and the Dutch Supreme Court). Summing it all up and also looking at the mentioning of the initial interest doctrine and the drug-store example part I have to say that every now and then I actually enjoy reading court decisions and … Nancy Gertner is a good read 🙂

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