id	author	title	date	pages	extension	mime	words	sentence	flesch	summary	cache	txt
inlawrev-18352	Boling, Aleasha J	Confusion or Mere Diversion? Rosetta Stone v. Google's Impact on Expanding Initial Interest Confusion to Trademark Use in Search Engine Sponsored Ads	2015	22	.pdf	application/pdf	9667	470	61	[Vol. 47:279 Southern District of California found defendant’s use of plaintiff’s trademarks amounted to fair use, but there could be no fair use if there was a likelihood of confusion.132 Thus, it found there was no likelihood of confusion under plaintiff’s initial interest confusion theory.133 The Playboy court distinguished Brookfield, saying neither Brookfield nor any cases it cited involved the fair use defense or use of trademarks in metatags that fairly describe the content of the site, and Brookfield expressly left open the fair use defense.134 In Playboy, the court also cited Brookfield’s discussion of the special nature of confusion in metatags cases and how the traditional eight-factor confusion test would not suffice because it could not be said that consumers would necessarily be confused as to the source of the product at the time of purchase.135 Thus, the court deemed the relevant factors in initial interest confusion cases to include 1) the confusion is “damaging and wrongful,” 2) the confusion would lead to consumer’s interest in defendant that he would not have had otherwise, and 3) the confusion offers an opportunity for sale for the defendant that would not otherwise be available.136 After outlining the important factors, the court concluded that none of them were relevant in Playboy.137 The court in Designer Skin, LLC v. S&L Vitamins, Inc., negatively cited Australian Gold on facts that were nearly identical, saying: In this court’s view, there is a meaningful distinction between (1) using a mark to attract potential customers to a website that only offers products of the mark holder’s competitors and (2) using a mark to attract potential customers to a website that offers the mark holder’s genuine products as well as the products of competitors. . . . See Tiffany, Inc. v. eBay, Inc., 600 F.3d 93 (2d Cir. 2010) (finding no liability for search engines because plaintiffs could not prove a likelihood of consumer confusion or that the search engines made “use” of the trademarks as required elements of infringement); 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005).	cache/inlawrev-18352.pdf	txt/inlawrev-18352.txt