Brief Roundup of Three Keyword Advertising Lawsuit Developments

1) Xymogen, Inc. v. Digitalev, LLC, 2018 WL 659723 (M.D. Fla. Feb. 1, 2018). This appears to be a typical competitive keyword advertising case, with the twist that the plaintiff also alleges counterfeiting. The defendant moved to dismiss. First, the court finds jurisdiction based on the Calder effects test because “the Defendant [allegedly] willfully purchased the “Xymogen” AdWords advertising in order to trade on the Plaintiff’s reputation.” (Compare Rocke v. Pebble Beach). The court also finds that the plaintiff alleged sufficient consumer confusion to survive a motion to dismiss: The Plaintiff states that the AdWords links “do not always clearly identify themselves as advertisements, and Google’s layout of the ads does not conspicuously identify them as such.” Additionally, according to the Amended Complaint, “Xymogen” is an often-search term on the internet. The Plaintiff alleges that it is the…

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