A business in the throes of a trademark infringement dispute will likely be successful in defending their mark if they meet the requirements of the Lanham Act: they are the rightful owners of the trademark, the infringing company is using the mark without their permission, and the use of the mark is causing consumer confusion. In the age of internet marketing, a lot of evidence against the alleged infringer can be sourced from a website’s metadata, the implicit information about a website that is used by browsers and search engines. The current dispute between FenF and Smartthingz illustrates this practice.
Two years ago, FenF, LLC filed a lawsuit against Smartthingz, Inc. on the grounds that the later is guilty of both patent and trademark infringement. FenF is the producer of the patented Yoga Toes, a foot stretcher in which the user places their toes into a series of holes, stretching them apart from one another. According to their website, Yoga Toes is “excellent at both preventing and treating a host of foot ailments and toe deformities,” such as “Plantar Fasciitis, Deep Vein Thrombosis, poor circulation,” and others. Smartthingz produces a product with a similar function, and name as that of FenF. Furthermore, both FenF and Smartthingz use similar online marketplaces to distribute their products.
FenF’s attorneys analyzed the source code for the Smartthingz website and found evidence of infringement in the page’s metadata. Smartthingz used the same header, the text at the top of a browser, and keywords (the text used by search engines to locate a website) as FenF. Moreover, Smartthingz purchased the phrase “Yoga Toes” as a Google AdWord, “meaning that Smartthingz’s website would be listed and advertised before FenF’s website when internet users searched for Yoga Toes through Google’s search engine,” according to court documents.
The moral here is that tech-savvy sleuthing can uncover a trail of infringement evidence which can be very useful in defending your marks from predatory competitors. If another organization is currently using your trademark for personal gain, you and your business deserve just compensation for your lost profits and the security of knowing that the infringement has been put to rest. To do so requires an experienced attorney, such as Robert G. Klein. The intellectual property law firm of Robert G. Klein has been the go-to choice for Los Angeles businesses for over 25 years. To schedule a confidential consultation, give us a call today.
[Did You Know: To gauge the likelihood of success in a trademark infringement case, run it through the 1979 AMF vs. Sleekcraft litmus test.]
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