On December 27, Seattle Trademark Reporter reported on the Western District’s summary judgment dismissal of Nautilus Group’s dilution claims against Icon Health & Fitness in the BOWFLEX-CROSSBOW case here. The decision turned in part on Judge Ricardo Martinez’s finding that Icon’s use of BOWFLEX through the purchase of search engine keywords constituted permissible comparative advertising.
Professors Rebecca Tushnet and Eric Goldman recently discussed the case in their respective blogs here and here.
Prof. Tushnet wondered why the court applied the “actual dilution” standard when the case was pending after the Trademark Dilution Revision Act had overruled Moseley v. V. Secret and reinstated the “likelihood of dilution” standard, a question that had crossed my mind as well.
On the keyword issue, Prof. Goldman observed:
“We haven’t seen too many dilution challenges against purchasing keywords. This case might suggest that such dilution claims [will] not be favorably received. Then again, given this case applied pre-TDRA law, a post-TDRA court could be more receptive. As usual, though, the exact words in the ad copy appear to make a difference.”