Network Automation, Inc. v. Advanced Systems Concepts, Inc.
United States Court of Appeals for the Ninth Circuit
638 F.3d 1137 (2011)
Advanced Systems Concepts (Systems) held a trademark on "ActiveBatch" for its job-scheduling software; competitor Network Automation (plaintiff in this action) purchased "ActiveBatch" as a Google AdWords keyword so its own sponsored ads would appear when users searched that term. After Systems threatened infringement litigation, Network sought a declaratory judgment of non-infringement, and Systems counterclaimed for infringement and a preliminary injunction, which the district court granted based on a finding of likely consumer confusion; Network appealed.
Whether, in a trademark-infringement case involving Internet commerce, the factors of the likelihood-of-confusion test should be applied flexibly rather than as a rigid checklist.