But then we would all be sorry. So I’m going to sum it all up tonight. This post, one more and then no more.
As I’ve mentioned to the point of what threatens to look like obsequiousness, Howard Hogan of the Gibson “plaintiff does not bring this lawsuit lightly” Dunn & Crutcher law firm, which has represented various plaintiffs against Google, made a sporting effort to acknowledge the glaring imbalance of the SEO panel.
Sporting. Effort. His recitation of the relevant case law, however, evinced neither of these qualities. Why? No idea. I’ve made that point.
On the other hand, Hogan’s discussion of what sounded something like actual proffers of evidence of consumer confusion by Rosetta Stone — almost as if the per se Internet infringement rule that is “initial interest confusion” (IIC) might not be enough — was heartening. LIKELIHOOD OF CONFUSION to be decided based on proof? What next, proof of harm? If this is a trend I’d love to see it spread.
The third panelist, Geoff Livingston, an SEO guy, opined as followed: “People don’t take the time today to discern quality information.” Naturally this played, again, to the IIC approach, and the suggestion that judges have to do the discerning for “people” who choose not to take the time to check (outside of, yes, the counterfeiting context) if Pepsi is now endorsed, affiliated or approved by Coke.
Livingston made an intriguing point, however, about what he called “karmic marketing”: You can “legitimately” (not his word; he’s not a lawyer) generate “relevance”, leading to search-engine pageviews based on use of your competitor’s trademarks in web-page content, by saying nice things about him.
Huh. So nominative fair use is really a defense to trademark infringement when it’s happy nominative fair use? Kind of like here:
Now the “SEO Guru” in this piece didn’t use the term “karma,” but who would know more about it?
Happy fair use: The future of INTA-Approved Trademark Using!®
Part last is in the pipeline…