A story appearing in Lexology.com, today discssed the case of CollegeSource, Inc. v. AcademyOne, Inc.,. which was decided by The Federal Court for the Eastern District of Pennsylvania in the case of .

The Court dismissed the plaintiff’s claim for trademark infringement and unfair competition holding that the plaintiff failed to demonstrate that the defendant’s purchasing trademark terms of its competitor in keyword advertising was unlikely to result in consumer confusion.

In this case the defendant purchased the plaintiff’s COLLEGESOURCE and CAREER GUIDANCE FOUNDATION trademarks as keywords, even though the defendant did not use the plaintiff’s trademarks in the text of its advertisements.

The court stated that four factors highlighted by another case, the Ninth Circuit’s landmark Network Automation decision,  (1) the strength of the mark, (2) evidence of actual confusion, (3) the types of goods and degree of care likely to be exercised by the typical purchaser, and (4) the labeling and appearance of the advertisement(s).

First, the court found the plaintiffs COLLEGESOURCE and CAREER GUIDANCE FOUNDATION marks were suggestive and commercially strong.

The court found there was “little evidence” of actual confusion. Specifically, it noted that 65 visitors typed the plaintiff’s trademark into a search engine, but when they saw the defendant’s keyword advertisement, they went to the defendant’s website instead.

Rather than finding this was evidence of confusion, however, the court said such instances could show that consumers were persuaded by the advertisements, rather than confused by them.

The court also noted that the events all occurred in a one-month period.

“in the AdWords context, the likelihood of confusion ‘will ultimately turn’ on what the consumer saw on the screen, including labeling and overall appearance.’” Such language emphasizes the crucial role that this factor played in both the Ninth Circuit’s decision and the present case.

The defendant’s ads appeared in separate “sponsored” search results, which were labeled as sponsored advertisements, and which often were set apart from the other results by a shaded text box.

The court noted that the defendant did not use the plaintiff’s business name or trademarks in the text of the advertisements themselves.

Lexology.com concludes that:

“It is becoming increasingly clear that courts across the country are finding the use of a competitor’s trademarks in keyword advertising to be non-infringing as long as the text of the advertisements is not confusing. Thus, companies should pay particular attention to the language they use in such advertisements, and should consider refraining from using competitors’ trademarks in the text of the advertisements, as a way to reduce potential liability.”