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August 13, 2020In the News

Passport Health’s Suit Over Search Engine Ads Fails at 4th Cir.

Bloomberg Law
  • No confusion after searchers reached website
  • Company failed to argue ad buy alone was infringement

Passport Health LLC lost its bid Thursday to hold Avance Health System Inc. liable under trademark law at the U.S. Court of Appeals for the Fourth Circuit, because Avance’s ads on Bing weren’t likely to cause customer confusion.

Avance Health System Inc. provides accounting, records management, and advertising support for a healthcare company, and hired a marketing company to advertise its website. The marketing company bought keywords from search engines to generate Avance ads beside specific search results, including “passport health” on Google and Bing, without Avance’s input. Avance told the marketers to stop using the ads when it was sued by Passport in 2013, and Passport dropped the case.

Passport sued again in 2017 after discovering that Avance’s Bing ads for “passport health” were still active. A North Carolina federal court ruled for Avance on Passport’s trademark claims, and the Fourth Circuit affirmed, finding the Avance ads didn’t create a likelihood of customer confusion.

“Any confusion from Avance’s use of Passport’s marks in its advertisement is dispelled when consumers reach the website,” the appeals court said, noting Avance’s website doesn’t mention Passport Health or advertise services similar to Passport’s travel-related healthcare business.
There was no evidence that Avance intended to confuse customers because it instructed the marketers to stop the ads after being told about the alleged infringement, the court said. The court also found no evidence of actual consumer confusion.

Passport also failed to develop its argument that the “mere purchase” of the keywords infringed its trademarks, the court said.

Michael Best & Friedrich LLP represented Avance.

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