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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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Niton Corporation v. Radiation Monitoring Devices, Inc.

27 F. Supp. 2d 102 (D. Mass., November 18, 1998)

Plaintiff Niton and defendant Radiation Monitoring Devices, Inc. ("RMD") are competitors that each sell x-ray fluorescence ("XFR") instruments which detect lead in paint. Both use the Internet to aid their marketing efforts. Plaintiff commenced suit, charging that defendant improperly used false statements about both defendant's own products as well as those of plaintiff in its marketing.

While this action was pending, plaintiff discovered that the meta tag descriptions of various pages of defendant RMD's website falsely stated that they were "The Home Page of [plaintiff] Niton Corporation, makers of the finest lead, radon and multi-element detectors." This description appeared in various search engine results that linked to defendant's website. Understandably, this description would lead individuals using search engines to locate plaintiff Niton to defendant's site instead. This description would also mislead users about the relationship between the parties. Immediately upon discovering this use of meta tag descriptions, plaintiff sought injunctive relief.

The court awarded plaintiff a "preliminary injunction subject to modification" which prohibited defendant from continuing to indicate it had an affiliation with defendant, either in its meta tag descriptions or otherwise. It does not appear that the court based its decision on a trademark infringement theory, as the word trademark does not appear in its decision. Instead, the court based its decision on its ability to stop the defendant from falsely holding itself and its website out as being affiliated with plaintiff.

The full text of the court's decision can be found on a web site maintained by the Berkman Center for Internet & Society at the Harvard Law School.

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