Porn site’s use of TMs in metatags not confusing

Multifab, Inc. v. ArlanaGreen.com, 122 F. Supp. 3d 1055
(E.D. Wash. 2015)
 
Plaintiff made commercial industrial components and
equipment, and used the name “Multifab” for at least 25 years.  It has the multifabinc.com domain name.
ArlanaGreen.com features pornographic images and videos, and allegedly caused
confusion by using Multifab’s name to promote its services.  Defendants defaulted.  Nonetheless, the court concluded that
Multifab failed to show trademark infringement or false advertising under the
Lanham Act, cyberpiracy under the Anti–Cybersquatting Consumer Protection Act,
or a violation of Washington’s Consumer Protection Act.
 
Infringement: lack of proximity of the goods weighed heavily
against a finding of confusion, as did the degree of consumer care and the
unlikelihood of any expansion into competing territory. “Sales of pornography
and industrial equipment do not target the same class of purchasers in any
discernable way, the products are not similar in use or function, nor are they
complementary in any sense.”  (Insert
your own dirty joke.)  Internet shoppers
are accustomed to trial and error, and Multifab’s goods would be bought by buyers
likely to be familiar with the commercial industrial equipment market, using a high
degree of care. See M2 Software, Inc. v. Madacy Entm’t, 421 F.3d 1073, 1084
(9th Cir. 2005) (because purchasers of music management databases are highly
sophisticated members of the music industry, the possibility that they could be
confused about music management products and services “is almost nil”
regardless of any trademark).  So the
strength of Multifab’s mark (suggestive), the similarity of the parties’ marks
(identical), and defendants’ apparent bad intent favored Multifab, but that
just wasn’t enough given the factors making confusion unlikely.  There was no evidence of actual confusion.
 
False advertising claims failed for the same reasons, as did
state consumer protection law claims.
 
ACPA claims failed because the conduct here didn’t involve
use of a domain name, whether at the top or second level.  Instead, defendants were using metatags and
website content.

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