Sensible Agnosticism or Quintessential Actual Confusion? Fourth Circuit Reassesses Consumer Uncertainty About Sponsored Links
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By Uli Widmaier of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP

"Sensible Agnosticism" or "Quintessential Actual Confusion"? Fourth Circuit Reassesses Consumer Uncertainty about Sponsored Links1

I. Introduction

On April 9, 2012, the Fourth Circuit issued its long-awaited decision in Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144 (4th Cir. 2012). The Court reversed the district court's summary judgment rulings in Google's favor on Rosetta Stone's claims for direct infringement, contributory infringement, and dilution. 

Rosetta Stone is a leading language-learning software producer. In 2009, Rosetta Stone sued Google for trademark infringement and dilution based on Google's sale and use of Rosetta Stone's marks as keywords. In 2010, the District Court for the Eastern District of Virginia entered summary judgment against Rosetta Stone's trademark claims (direct, contributory, and vicarious trademark infringement; dilution), and dismissed Rosetta Stone's unjust enrichment claim.  See Rosetta Stone Ltd. v. Google, Inc., 730 F. Supp. 2d 531 and 732 F. Supp. 2d 628 (E.D. Va. 2010).

The court evaluated consumers' states of mind that count as actionable confusion. Contrary to the district court's view, and contrary to recent Ninth Circuit decisions, the Fourth Circuit held that consumer uncertainty whether a sponsored link is authorized by the trademark owner constitutes confusion that can support a trademark ...

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