Century 21 Real Estate Corp. v. LendingTree, Inc.
United States Court of Appeals for the Third Circuit
425 F.3d 211 (2005)
Century 21, Coldwell Banker, and ERA (collectively CCE) (plaintiffs) are national real estate franchisors. LendingTree, Inc. (defendant) ran an online referral service connecting consumers to local real estate brokers, including about 250 CCE franchisees. LendingTree's marketing said its network included "Coldwell Banker, Century 21 … and ERA" and used the plaintiffs' logos and a Coldwell Banker-style "For Sale" sign image, without any actual affiliation between LendingTree and the CCE parent companies. After CCE objected, LendingTree made partial changes and later added a disclaimer of non-affiliation, but CCE still sought a preliminary injunction. CCE offered no evidence that any consumer was actually confused. The district court granted the injunction, finding a likelihood of confusion and rejecting LendingTree's nominative-fair-use defense, and LendingTree appealed.
Whether, in a trademark-infringement case, the plaintiff must show a likelihood of consumer confusion before the burden shifts to the defendant to establish a nominative-fair-use defense.