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Alzheimer’s Association and Alzheimer’s Foundation in keyword battle

30 April 2018

From Rebecca Tushnet’s 43(B)log:

Alzheimer’s Disease & Related Disorders Association, Inc. v. Alzheimer’s Foundation of America, Inc. 2018 WL 1918618, No. 10-CV-3314 (S.D.N.Y. Apr. 20, 2018)

The Association (counterclaim plaintiff) sued the Foundation (counterclaim defendant), alleging that the Foundation’s purchase of Asssociation trademarks as search engine keywords and use of the two-word name “Alzheimer’s Foundation” constituted trademark infringement and false designation of origin under the Lanham Act. The court found that confusion was unlikely.

The parties first litigated confusion in 2007, starting with fighting over checks made out to one entity but sent to the other.   The Association was formed in 1980 and is the world’s largest private non-profit funder of Alzheimer’s research. It has more than 80 local chapters across the nation providing services within each community. In fiscal year 2016, the Association raised more than $160 million in contributions and spent $133.6 million on program activities, including more than $44 million on public awareness and education. The Association had nearly 9 billion “media impressions” and more than 41 million website visits in that FY.

. . . .

The Association has a standard character mark registration for ALZHEIMER’S ASSOCIATION, registered since June 8, 2004, but in use since 1988. The Association also has other registrations using “Alzheimer’s Association” along with other words or with graphical elements, as well as standard character marks for WALK TO END ALZHEIMER’S and MEMORY WALK. In 2016, nearly 500,000 participants took part in Association walks in 630 communities, raising more than $78.6 million. The Association websitet displays “alz.org” and “Alzheimer’s Association” at the top of its landing page. Its principal color is purple.

The Alzheimer’s Foundation of America was founded in 2002 and has more than 2,600 member organizations throughout the country that collaborate on education, resources, best practices and advocacy. AFA has awarded millions of dollars in grant funding to its member organizations for services such as respite care. In 2010, AFA’s “revenues, gains and other support” from “contributions and special events including telethons” was approximately $6.6 million. Its website is at www.alzfdn.org, and principally uses the colors teal and white. Its first registered mark, from 2006, is for “AFA Alzheimer’s Foundation of America” with the organization’s “heart in hands” logo.

. . . .

The Association also used keyword advertising, including buying “Alzheimer’s Foundation” as a keyword until 2010.

A Google search of “alzheimer’s association” from June 2014 showed the Foundation’s ad as the top result, with the main header as “Alzheimer’s Foundation – alzfdn.org” with the tagline “An Association of Care and Support. Reach Out to Us for Help….” The second and only other ad was from the Association. Their header reads “alz.org – Alzheimer’s Association,” and the tagline “Honor a Loved One with a Tribute Donation – Support Research & Care.”

. . . .

“Alzheimer’s Association” sometimes led to more clicks on the Foundation’s sponsored ad than those received from its own brand. Indeed, campaigns targeting Foundation’s competitors performed the best and comprised roughly 40% of AFA’s keyword marketing budget.   During some of the relevant period, the Foundation may have been using Association-related metatags, though the court found this immaterial “as [site metatags] have likely not been used by search engines since before 2009, and so have little effect on the ordinary prudent consumer.”

On the Foundation’s donation page, there are many references to “AFA” or “Alzheimer’s Foundation of America,” and no references to the Association or use of any the Association’s marks. “At no point while on the AFA website during the donation process would a consumer see any of the Association Marks.” So too in reverse for the Association.

The Foundation was the first to complain of confusion, in 2004, when its then CEO wrote “a routine web search under ‘alzheimers foundation’ led me to [the Association’s] site. ‘Alzheimer’s Foundation of America’ is a registered service mark of our organization. It distresses me that supporters of our respective organizations may be confused when searching the internet.” This might not have related to sponsored ads, though. In 2014, a Foundation employee wrote that a survey showed many people saying they donated before or were “introduced to AFA through a fund raising event,” and speculated that “several respondents may have us confused with the Association or with ‘the cause.’ ”

Between 2007 and 2012, the Association received more than 5,700 checks made payable to “Alzheimer’s Foundation” or a variant totaling over $1.5 million. The Foundation received more than 5,000 checks between 2006 and June 2016 made payable to “Alzheimer’s Association” or near variants. A large percentage of the Foundation’s online donors are first-time donors, and that the average online donation, as well as check donation, is under $100.  The Foundation argued that the number of Foundation-labeled checks received by the Association was only 0.1% of the total number of checks received, and 0.252% of the total value of checks received.

. . . .

There was also two studies from the Association and an expert critique by the Foundation.  Study 1 found 34% net confusion between the standard character marks “Alzheimer’s Association” and “Alzheimer’s Foundation.”  The court found that this was somewhat artificial but still probative to actual confusion. However, the court found that the control—“Alzheimer’s Trust”—artificially inflated the net confusion numbers.  They “pre-tested” two controls, “Alzheimer’s Charity” and “National Alzheimer’s Foundation,” which, by generating more confusion, would have yielded net confusion rates for Alzheimer’s Foundation of 12% and 11% respectively.

Link to the rest at Rebecca Tushnet’s 43(B)log

PG found this litigation interesting because, in a (distant) past life, he developed a startup tech company’s Google keyword and Google Adwords programs.

One of his first Adwords buys was ads that were keyed to the names of the main competitors of the startup. In his recollection, this later became a standard Adwords strategy for a lot of different products, tech and non-tech.

As far as general Google search results are concerned, they’re governed by Google’s proprietary algorithms and the order in which the search results appear is entirely controlled by Google (although search engine optimization techniques can help improve search rankings).

Google results are far from being finally dispositive on the issue of whether the Foundation’s mark infringes the Association’s mark, but it’s interesting that those results apparently played a large role in the court’s consideration of the matter.

Legal Stuff, Trademark