In an action for trademark infringement, false designation of origin, and dilution under the Lanham Act, district court's dismissal for failure to state a claim is vacated and remanded where plaintiff's allegations that Google's recommendation and sale of plaintiff's mark to its advertisers triggers the appearance of plaintiff's advertisements and links in a manner likely to cause consumer confusion when a Google user launches a search of plaintiff's trademark, adequately pleads a use in commerce and is a proper claim under the Lanham Act.
Appeal from the United States District Court for the Northern District of New York.
Argued: April 3, 2008
Decided: April 3, 3009
Errata Opinion: July 28, 2009
Before: LEVAL, CALABRESI, WESLEY, Circuit Judges.
Opinion by LEVAL, Circuit Judge.
For Appellant: Edmund J. Gegan, Rescuecom Corporation, Syracuse, New York.
For Appellee: Michael H. Page, Keker & Van Nest, LLP, San Francisco, California.