The Marketing Channels Used by the Parties:

Big Says: The fact that Big and Small market their services through the Internet, using virtually identical domain names, exacerbates the likelihood of confusion: (a) people searching the Internet for Big's TaxHQ® website and finding Small's site may simply assume that they have reached Big's site or believe that Small is associated with, or sponsored by, Big; (b) consumers may wrongly assume that Big's TaxHQ® website is no longer offered and has been replaced by Small's site; or (c) even if consumers realize that Small's' site is not the same as Big's TaxHQ® website, it may wrongly divert trade to Small's site because of its use of the identifying portion of Big's domain name. See Brookfield, 174 F.3d at 1057 (identifying these areas of likely confusion if companies make use of the Internet under virtually identical domain names).

Small says: saying that the marketing channels used by the parties are the same because both rely, to a significant extent, on the internet, is (even if true) too generic and akin to saying that the marketing channels are the same because the parties both rely on (for example) print media advertising. Unless there is confusion in the target market, this factor means nothing - it will not change the absence of confusion into confusion.

Citing the similarity of domain names (1) begs the question of priority (2) means nothing if confusion does not otherwise appear, and (3) has no bearing with respect to plaintiff's main site (abouttax.COM). Home       TM Overview       TM Case Index

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