Summary judgment for search engine provider driven by survey rebuttal critique

In this case, the plaintiff sued a search engine provider, claiming that its trademark was being violated in a competitor’s online advertising. The plaintiff said it was losing customers who used the search engine to look for their service, but were then led to other websites that win business at their expense. The attorneys for the search engine provider argued that the company was simply acting as a publisher by allowing competitors’ ads to appear on the same screen when the names of their rivals are typed in. An Applied Marketing Science (AMS) expert provided a rebuttal report regarding a confusion survey conducted by the plaintiff’s market research expert. In the rebuttal report, the AMS expert pointed out the many critical flaws in the survey, thereby showing that it could not be relied upon by the Court as evidence that sponsored links were confusing consumers. A U.S. District Court judge agreed and ruled that there was no evidence of confusion, in granting defendant’s motion for summary judgment on that issue.