Initial interest false advertising (aka bait and switch) in Google ads

Beacon Plumbing & Mechanical Inc. v. Sposari Inc., 2016
WL 5795282, No. C15-1613 (W.D. Wash. Mar. 17, 2016)
Beacon sued defendants, including Sposari, which does
buisiness as Mr. Rooter Plumbing Services, for trademark infringement and
dilution (federal claim dismissed) and related claims.  The internet ads at issue said “Call 24/7
Beacon Plumbing” and displayed the address “beacon.callnow-plumber.com.”  However, the ads eld to a website advertising
“Mr. Rooter Plumbing.”  The court found
that the false advertising allegations plausibly alleged materiality.  It was plausible that a consumer who clicked
on this ad could experience actual confusion and “conclude that Beacon Plumbing
and Mr. Rooter Plumbing are the same entity.” This mistake, “combined with
intent to purchase plumbing services from Beacon Plumbing,” would likely influence
a purchasing decision.  Though Beacon
didn’t cite cases finding initial interest confusion cognizable as such for a
false advertising claim, the argument made sense. (It’s also usually known as “bait
and switch” in false advertising law.)
The ACPA claim failed, however, because “beacon” in “beacon.callnow-plumber.com”—is
a third-level domain, and third-level domain names aren’t within the ACPA’s
reach.

The Washington Consumer Protection Act claim required, along
with falsity causing harm to the plaintiff, a public interest impact.  A practice must have “the capacity to deceive
‘a substantial portion’ of the public.” Relevant factors include: “(1) Were the
alleged acts committed in the course of defendant’s business? (2) Did defendant
advertise to the public in general? (3) Did defendant actively solicit this
particular plaintiff, indicating potential solicitation of others? (4) Did
plaintiff and defendant occupy unequal bargaining positions?” Also, “intentional
trademark infringement can satisfy the public interest impact element.” Given
that (1) and (2) were allegedly present, and the allegations of intentional
infringement, the court found that the CPA claim could continue.

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