UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Government Employees Insurance Company v. Google, Inc., et al
This Opinion explains in more detail the Court’s decision on the liability
issues tried to the bench on plaintiff Government Employees Insurance
Company’s (“GEICO”) Complaint against defendant Google, Inc. (“Google”).1
Plaintiff claims that Google
violates the Lanham Act and engages in unfair competition under state law by
using GEICO’s trademarks2 to sell advertising on its Internet
search engine. Specifically, the Complaint alleges (1) direct, contributory
and vicarious trademark infringement, (2) false representation and (3)
dilution, all under the Lanham Act, 15 U.S.C. § 1051, as well common law
unfair competition. In its Prayer for Relief, GEICO seeks preliminary and
permanent injunctions barring Google from (1) selling the GEICO marks or
confusingly similar terms for use in defendant’s advertising program, (2)
continuing to display third parties’ advertisements alongside the results of
searches that use GEICO’s marks or confusingly similar terms as keywords and
(3) making any use of the GEICO marks and/or confusingly similar terms
unless expressly authorized by GEICO. Plaintiff also seeks actual and treble
damages and attorneys’ fees pursuant to the Lanham Act, 15 U.S.C. § 1117,
actual and punitive damages under Virginia common law, and
actual and treble damages and attorneys’ fees under Va.Code § 18.2-500.
At the conclusion of plaintiff’s evidence, defendant moved for Judgment as a
Matter of Law under Fed. R. Civ. P. 52(c). As stated in open court, the
Court found that GEICO did not produce sufficient evidence to establish that
the mere use by Google of the GEICO trademark as a search term or keyword,
even in the context of Google’s advertising program, violates either the
Lanham Act or Virginia common law. The Court also found that GEICO failed to
produce sufficient evidence to establish that advertisements that do not
reference GEICO’s trademarks in their text or headings violate the Lanham
Act, even though Google’s advertising program enables those ads to appear
when a user searches on GEICO’s trademarks. However, the Court did find that
GEICO presented sufficient evidence to survive defendant’s Motion on the
narrow issue of whether advertisements that appear when a user searches on
GEICO’s trademarks and do reference those marks in their headings or text
violate the Lanham Act. 3
After the Court reached this conclusion, defendant
represented that it had no evidence regarding whether such advertisements
generate a likelihood of confusion. Upon that concession, the Court found
that the use of GIECO’s trademarks in the heading or text of advertisements
that appear when a user searches on “GEICO” does violate the Lanham Act,
leaving as the only remaining issues in the case whether Google is liable
for such violations and, if so, the measure of damages.4 Having
announced these findings in open court, the Court adjourned the
trial until further notice to issue a more detailed explanation of its
ruling and to allow the parties time to attempt to resolve the remaining
The facts produced at trial establish that GEICO is
among the nation’s leading providers of insurance, most notably car
insurance. GEICO has positioned itself as a low-cost insurance provider and,
of particular importance to this action, employs a business model by which
customers can only receive GEICO rate quotes directly from the company,
either by phone or online through GEICO’s Web site. The company estimates
that roughly 40% of its business is now Internet-driven, and that number is
Defendant Google operates a widely used Internet
search engine through which consumers can search for, among other things,
Web sites offering products and services. A user can search on general
terms, such as “auto insurance,” or more specific keywords, such as “GEICO.”
The search engine compares the search terms entered by a user with databases
of Web sites and generates a listing of the sites matching those terms. The
results of these searches are known as “organic listings.” In addition,
through its “Adwords” advertising program, Google sells the opportunity to
have advertisements appear alongside the organic listings. In the Google
system, such advertisements appear as “Sponsored Links” to the right of the
organic search results. Although at one time Google prevented advertisers
from using this system to place their ads next to the organic listings
associated with trademarked terms, such as “GEICO,” defendant now allows
Plaintiff alleges that by selling this opportunity to
advertisers, defendant (1) directly violates the Lanham Act by using “GEICO”
as a keyword to place related Sponsored Links alongside organic results in a
manner that is likely to confuse consumers as to the source, affiliation or
sponsorship of those links and (2) contributes to third parties’ violations
of the Act by knowingly encouraging advertisers to use GEICO’s marks in the
heading or text of their ads in a manner that is likely to confuse
consumers.6 Specifically, GEICO maintains that because under its
business model, potential customers can get GEICO rate quotes only directly
from the company, Sponsored Links that appear when users search on “GEICO”
and that advertise other sites’ ability to provide rate quotes for car
insurance, even from unnamed insurance companies, are misleading because of
the implied association of those sites with the GEICO search term. Defendant
counters that the Internet is still governed by traditional trademark
infringement and fair competition principles, under which placing an
advertisement–-especially one that does not mention a competitor by
name--next to a competitor’s own advertisement does not violate the Lanham
Act. Defendant adds that even evidence of users visiting those Sponsored
Links would not demonstrate that the advertisements are necessarily
misleading because potential customers frequently shop around and compare
brands on their own, even if GEICO’s policy precludes them from comparing
GEICO’s rates on the
advertisers’ sites. III. Discussion
A. Fed. R. Civ. P. 52(c)
During a trial without a jury, after a party has been
fully heard on an issue, the court may enter judgment as a matter of law
with regard to any claim or defense that “cannot under controlling law be
maintained or defeated without a favorable ruling on that issue.” Fed. R.
Civ. P. 52(c). The court’s finding must be supported by findings of fact and
conclusions of law, which may be set forth either in open court or in a
subsequent memorandum opinion. Fed. R. Civ. P. 52(a).
B. The Lanham Act
Under the Lanham Act, a plaintiff alleging trademark infringement and unfair
competition must show 1) that it possesses a mark, 2) that the defendant
“used” the mark, 3) that the defendant's use of the mark occurred “in
commerce,” 4) that the defendant used the mark “in connection with the sale,
offering for sale, distribution, or advertising” of goods and/or services
and 5) that the defendant used the mark in a manner likely to confuse
customers. 15 U.S.C. §§ 1114, 1125(a); People for the Ethical Treatment of
Animals v. Doughney, 263 F.3d 359, 364 (4th Cir. 2001) (internal quotations
omitted). As a threshold matter, as noted above, defendant does not dispute
that plaintiff possesses the marks at issue-–“GEICO” and “GEICO DIRECT.” 1. Trademark Use “in Commerce” and “in Connection with the Sale, Offering
for Sale, Distribution, or Advertising” of Goods and/or Services
In a previous Memorandum Opinion addressing defendant’s Motion to Dismiss,
the Court found that plaintiff had sufficiently alleged that defendant “uses”
GEICO’s trademarks for purposes of the Lanham Act by allowing advertisers to pay
to have their ads appear next to the organic listings that result when the marks
are entered as search terms. GEICO, 330 F. Supp. 2d at 704. The Court also found
that plaintiff had sufficiently alleged that such use was “in commerce” and “in
connection with the sale, offering for sale, distribution, or advertising of
goods and services,” rejecting defendant’s argument that the marks were used
only in defendant’s computer coding and that such an invisible process could not
constitute use under the Act. Id. at 704-05. As such, the Court denied
defendant’s Motion To Dismiss because if the facts alleged in the Complaint were
true, defendant could be liable, either directly or indirectly, for its use of
plaintiff's trademarks to sell advertising and to place that advertising,
labeled as Sponsored Links, alongside the organic listings resulting from
searches on those marks. Id. at 704.
The Court, however, emphasized that its finding that Google uses the GEICO
marks in commerce and “in connection with the sale, offering for sale,
distribution, or advertising” of goods or services does not, without more,
establish that defendant has violated or continues to violate the Lanham Act.7
Id. Rather, plaintiff was required to prove at trial that defendant’s use
results, or at one time resulted, in a likelihood of confusion.
2. Likelihood of Confusion
a. The Applicable Standard
To establish a likelihood of confusion, a plaintiff must prove that the
defendant’s use of the plaintiff’s trademark is “likely to confuse an ‘ordinary
consumer’ as to the source or sponsorship of the goods.” PETA, 263 F.3d at 366.
Of particular relevance to this action, in determining whether a likelihood of
confusion exists, a court must consider the defendant’s use of the mark in its
entirety, not in isolation. See id. The Fourth Circuit has adopted a list of
seven factors to guide courts in this analysis: (1) the strength or
distinctiveness of the plaintiff’s mark, (2) the similarity of the two marks,
(3) the similarity of the goods and services that the two marks identify, (4)
the similarity of the facilities that the two parties use in their businesses,
(5) the similarity of the two parties’ advertising, (6) the defendant’s intent
in adopting the same or similar mark and (7) the existence of actual confusion.
Lone Star, 43 F.3d at 933. However, the Fourth Circuit has emphasized that
likelihood of confusion is a highly factual issue, the assessment of which
depends largely on the particular circumstances of each case, see Petro Stopping
Centers, L.P. v. James River Petroleum, Inc., 130 F.3d 88, 92 (4th Cir. 1997),
that not all of the factors are relevant in every case, and that the likelihood
of confusion standard does not require that a plaintiff prove actual confusion.
See Lone Star, 43 F.3d at 933. In addition, other factors, such as the
sophistication of the consuming public or the quality of the defendant’s product,
may be relevant to a given set of facts. Sara Lee Corp. v. Kayser-Roth Corp., 81
F.3d 455, 464-65 (4th Cir. 1996).
Recognizing that these traditional factors are not really applicable in this
case, which does not involve confusion based on a defendant’s use of a mark
identical or similar to a known mark to sell its own products, plaintiff argues
that defendant’s use of its trademark causes “initial interest” confusion. In
the Internet context, this term describes the distraction or diversion of a
potential customer from the Web site he was initially seeking to another site,
based on the user’s belief that the second site is associated with the one he
originally sought. See Brookfield Communications, Inc. v. West Coast
Entertainment Corp., 174 F.3d 1036, 1064 (9th Cir. 1999); Bihari v. Gross, 119
F. Supp. 2d 309, 320-21 (S.D.N.Y. 2000); see also PETA, 263 F.3d at 366 (discussing
the appropriate boundaries of initial interest confusion with regard to parody).
Inherent in this concept is the risk that the user will be satisfied with the
second site or sufficiently distracted that he will not arrive at or
return to the site for which he was originally searching. Bihari, 119 F. Supp.
2d at 320-21. The risk of losing customers who are initially confused is
lessened on the Internet as compared, for example, to when a billboard employs
initial interest confusion to entice a customer down the wrong road because a
customer can retrace his steps almost instantaneously online. See id. at 320
n.15. However, pointing to the unique nature of the car insurance business,
GEICO contends that because customers seek an average of fewer than two quotes
before purchasing car insurance, even in the Internet context the company loses
significant business from the alleged initial confusion that misdirects
potential customers who originally searched on “GEICO” to sites where they can
obtain other companies’ quotes but not GEICO’s.
To prove likelihood or absence of confusion, initial or otherwise, parties
commonly introduce the results of customer or potential customer surveys. See
IDV North America, Inc. v. S&M Brands, Inc., 26 F. Supp. 2d 815, 829 (E.D. Va.
1998). Results indicating that a high percentage of customers are likely to be
confused can establish this element of a Lanham Act violation, while results
revealing a low potential for confusion can negate such allegations.8
Id. In assessing a survey’s probative value, a court must evaluate not only the
percentages of respondents who
appeared likely to be confused but also the accuracy and reliability of the
survey design and method. See id. at 829-32. Even if a survey is flawed in some
respects, it can still support a finding of liability if the results reveal that
an overwhelming percentage of respondents demonstrated confusion. See Sara Lee,
81 F.3d 455, 466-67.
b. Evidence of Confusion
(1) GEICO’s Survey Results
GEICO introduced an expert survey that it claimed revealed a strong likelihood
of confusion caused by Google’s Adwords program and the Sponsored Links that the
program places alongside the organic results of searches on the GEICO trademark.9
The survey was designed and evaluated by a professor of marketing at American
University’s Kogod School of Business, who attempted to measure initial interest
confusion experienced by potential customers10 by asking them to
enter “GEICO” into the Google search engine and then view a results page
that showed five Sponsored Links alongside the organic listings.11
The survey also tested a “control group,” the members of which also searched on
“GEICO” but then saw a results page on which the Sponsored Links had been
changed from advertisements for car insurance quotes, most of which mentioned
GEICO, to advertisements regarding NIKE athletic apparel. After asking both
groups a series of questions designed to measure the likelihood of confusion,
the professor compared the degree of confusion demonstrated by those who viewed
the insurance-related Sponsored Links to that demonstrated by the control group.12
According to the survey results, 67.6% of test group respondents expected
that they would reach GEICO’s Web site if they clicked on the Sponsored Links,
and 69.5.% thought that the Sponsored Links were either links to GEICO’s site or
affiliated with GEICO in some way.13 In addition, 20.1% of test group
respondents said that to purchase GEICO insurance they would click first on one
of the Sponsored Links.14 From these results, the professor concluded
that a substantial percentage of potential GEICO customers perceived the
Sponsored Links as being
associated with GEICO and therefore were confused about whether they could get
GEICO information or rate quotes from those links.
(2) Survey Weaknesses
The Court found that defendant’s cross examination of the professor revealed a
number of weaknesses in GEICO’s survey evidence. First, the control did not
successfully demonstrate the source of the test group’s confusion. As the survey
expert admitted, an effective control should have removed from the page viewed
by the test group the allegedly infringing elements for which GEICO wanted to
measure confusion, such as the Sponsored
Links mentioning GEICO, while keeping the other elements as constant as possible.
This would have allowed the evaluator to subtract any degree of confusion
expressed by the control group from that expressed by the test group, with the
resulting difference representing the confusion attributable to the eliminated
elements–-similar to the manner in which medical researchers subtract out the
“placebo effect” of a drug or procedure under examination. However, the survey’s
control, which replaced the insurance-related Sponsored Links that appeared when
respondents searched on “GEICO” with Sponsored links related to NIKE athletic
apparel, did not function as an accurate measure of the confusion caused by
non-infringing elements of the screen shot. As a threshold matter, the control
retained the use of “GEICO” as a keyword, which itself was alleged to be a
source of confusion. Further, instead of removing only the references to GEICO
in the Sponsored Links, which would have measured whether the use of the
trademarked keyword to place relevant Sponsored Links or the appearance of the
mark in the ads was responsible for respondents’ confusion, the survey removed
all references to car insurance and replaced them with clearly unrelated NIKE
ads. Thus, the control did not reveal which aspects of the insurance-related
Sponsored Links caused respondents’ confusion–-the use of GEICO’s mark in the
ads or the ads’ mere reference to insurance.15 By not examining this
more subtle distinction, the survey did not produce evidence that the use of
“GEICO” as a keyword, without more, causes respondents to be confused by the
appearance of the Sponsored Links.
Second, the survey design introduced “demand effects” and “order effects” that
could have tainted respondents’ answers that appeared to indicate
confusion. A demand effect results when th interviewer’s questions or other
elements of the survey design influence participants’ responses by suggesting
what the “correct” answers might be or by implying associations that might not
otherwise occur to participants. An order effect results when a participant’s
answer to one question affects his answers to subsequent questions. For obvious
reasons, both effects can significantly bias the survey results. In this
instance, as noted above, the interviewers repeatedly questioned respondents
about their behavior and assumptions with regard to GEICO and obtaining GEICO
quotes. Responses to subsequent questions, such as whether the participant
thought the Sponsored Links were affiliated with any company, easily could have
been influenced by the earlier questions about GEICO, making the participant
more likely to assume that “GEICO” was the right answer or what the interviewer
wanted to hear. This demand effect, along with the order effect, also undercut
the assessment of confusion regarding the one insurance-related Sponsored Link
shown to the test group that did not mention GEICO’s mark in its heading or
text. Of the five Sponsored Links listed, only the last one did not refer to
GEICO in its heading or text. By the time respondents considered this ad, they
had already seen the four others that did contain the GEICO mark, calling into
question whether they would have expressed similar confusion if faced only with
insurance-related ads that appeared next to the organic results for “GEICO” but
did not mention the mark itself.
Third, discrepancies between the Web page selected to be shown to the survey
particpants and the actual pages users are likely to see when searching on
“GEICO” further weakened the reliability of the results. As discussed above, the
page chosen included more Sponsored Links than the average Google results page.
In addition, and possibly more important to an accurate assessment of users’
confusion, the overall appearance of the outdated screen shot shown to survey
participants differed markedly from the Google results page that a user would
encounter in running a real search. Most notable, in the survey shot, the
Sponsored Links were closer on the page to the organic listings
than on Google’s actual search results pages.16 In the Court’s view,
the proximity of the Sponsored Links in the survey page increased confusion
regarding the difference between the two lists of links and was suggestive of
affiliations between the organic listings and the Sponsored Links. Especially
when considered along with the other weaknesses in the survey, these differences
give the Court serious doubts about the accuracy of the survey results’
reflection of actual users’ experiences with and reactions to the Sponsored
c. Conclusions from Evidence of Confusion
Based on the above analysis, the Court finds that plaintiff has failed to
establish a likelihood of confusion stemming from Google’s use of GEICO’s
trademark as a keyword and has not produced sufficient evidence to proceed on
the question of whether the Sponsored Links that do not reference GEICO’s marks
in their headings or text create a sufficient likelihood of confusion to violate
either the Lanham Act or Virginia common law. Despite the many flaws in its
design, the survey’s results were sufficient to establish a likelihood of
confusion regarding those Sponsored Links in which the trademark GEICO appears
either in the heading or text of the ad. Based on this finding, Google may be
liable for trademark infringement for the time period before it began blocking
such usage or for such ads that have slipped or continue to slip through
Google’s system for blocking the appearance of GEICO’s mark in Sponsored Links.
For, despite the flaws in the survey, the extremely high percentages of
respondents who experienced some degree of confusion when viewing such ads
provides sufficient evidence to survive defendant’s Motion for Judgment. Further,
having been advised by defendant that it has no evidence to introduce on this
last issue, the Court finds that plaintiff has established a likelihood of
confusion, and therefore a violation of the Lanham Act, solely with regard to
those Sponsored Links that use GEICO’s trademarks in their headings or text.
Aware of the importance of these issues to the ongoing evolution of Internet
business practices and to the application of traditional trademark principles to
this new medium, the Court emphasizes that its ruling applies only to the
specific facts of this case, which include the unique business model employed by
plaintiff and the specific design of defendant’s advertising program and search
results pages. In addition, the Court has not addressed several remaining legal
issues, including whether Google itself is liable for the Lanham Act violations
resulting from advertisers’ use of GEICO’s trademarks in the headings and text
of their Sponsored Links, as accomplished through Google’s Adwords program. That
significant issue remains to be resolved, either through an agreement by the
parties or in a continuation of the trial. Also unresolved is the timeframe
during which violations occurred and the measure of damages or other relief to
which plaintiff may be entitled if Google were to be found liable.
Accordingly, for the reasons stated in open court, as amplified by this
Memorandum Opinion, defendant’s Motion for Judgment pursuant to Fed. R. Civ. P.
52(c) has been granted in part and denied in part. The Court has temporarily
stayed this civil action to give the parties time to consider these rulings and
determine whether they can resolve the remaining issues of liability and damages.
An appropriate Order will issue. The Clerk is directed to forward copies of this
Memorandum Opinion to counsel of record.
Entered this 8th day of August, 2005.
Leonie M. Brinkema
United States District Judge
1 The original Complaint was filed on May 4, 2004, against Google and
Overture Services, Inc. (“Overture”). A First Amended Complaint was filed on May
14, 2004, and on November 29, 2004, Overture was dismissed as a defendant.
Therefore, all references to the Complaint in this Opinion are to the First
Amended Complaint, and only Google remains as a defendant.
In a previous Memorandum Opinion discussed more fully below, the Court dismissed
Google’s Motion to Dismiss in part, finding that Google did “use” plaintiff’s
trademark for purposes of the Lanham Act, although not necessarily improperly.
The Court granted defendant’s Motion To Dismiss state law counts of tortious
interference with prospective economic advantage and statutory civil business
conspiracy and denied the Motion to the extent that it sought a ruling that
Google did not “use” plaintiff’s trademark. See Gov’t Employees Ins. Co. v.
Google, Inc., 330 F. Supp. 2d 700 (E.D. Va. 2004).
Later, the Court denied defendant’s Motion for Summary Judgment, which argued
that Google’s use of GEICO’s marks does not create a likelihood of confusion,
because such a highly factual question is inappropriate for resolution on
summary judgment. See, e.g., National Fed’n of the Blind, Inc. v. Loompanics
Enters., Inc., 936 F. Supp. 1232, 1241 (D. Md. 1996)(citing Country Floors, Inc.
v. P’ship of Gepner & Ford, 930 F.2d 1056, 1062-63 (3d Cir. 1991)).
2 The Complaint alleges, and defendant does not dispute, that plaintiff has
obtained federal trademark registration for “GEICO” and “GEICO DIRECT.”
3 Those advertisements appeared before Google began barring such use of
GEICO’s trademark and may have continued to slip through Google’s screening
system since the ban took effect.
4 Whether the advertisers themselves violated the Lanham Act is not before
the Court because the advertisers are not parties to this action.
5 Conversely, Google has always allowed trademark holders to request
that their trademarks not appear in Sponsored Links’ headings or text. Thus, one
point of dispute regarding Google’s potential damages exposure, should GEICO
prevail on the remaining liability issue, concerns when GEICO first effectively
requested that its marks be blocked in this fashion and whether Google responded
That dispute involves the effect of a number of communications exchanged between
the parties in 2002 and 2003 and the sufficiency of Google’s past and current
efforts at policing violations of the ban on advertisers using GEICO’s marks in
the headings and text of their ads. Because these issues are relevant to
Google’s potential liability for damages, not to whether the use of GEICO’s
marks violated the Lanham Act, they will not be addressed further in this
6 The Complaint also alleges a common law claim of unfair competition. The
elements of trademark infringement and unfair competition under the Lanham Act
are identical to the elements of unfair competition under Virginia state law.
See Lone Star Steakhouse & Saloon v. Alpha of Va., 43 F.3d 922, 930 n.10 (4th
Cir. 1995). Accordingly, this Opinion’s discussion of the Lanham Act claims
applies equally to plaintiff's unfair competition claim.
7 The Court found support for this distinction in McCarthy on
Trademarks and Unfair Competition: “[W]here keyword placement of . . .
advertising is being sold, the portals and search engines are taking advantage
of the drawing power and goodwill of these famous marks. The question is whether
this activity is fair competition or whether it is a form of unfair free riding
on the fame of well-known marks.” GEICO, 330 F. Supp. 2d at 704 (quoting J.
Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 25:70.1 (2004)).
8 The Fourth Circuit has noted that “survey evidence clearly favors the
defendant when it demonstrates a level of confusion much below ten percent” but
that a number of courts have found actual confusion based on survey evidence
indicating a ten to twelve percent rate of confusion. See Sara Lee, 81 F.3d at
9 Plaintiff tested confusion with regard to the “GEICO” mark but advances the
same arguments with regard to “GEICO DIRECT.” This survey represents GEICO’s
only evidence of likelihood of confusion. Therefore, GEICO’s ability to survive
defendant’s Motion depends on the strength and reliability of the survey results.
10 The survey was limited to drivers who said that they were likely to
consider purchasing or renewing their auto insurance policy within the next six
months and that they would use the Internet to search for providers.
11 The professor selected this screen shot from among a number of choices
provided to him by plaintiff. The shot captured the results of a search run on
“GEICO” in April 2004, which was before Google began barring advertisers from
using GEICO’s marks in their ad headings and text. Plaintiff contended at trial
that the use of an earlier shot was necessary to avoid having references to this
action show up in the organic listings, a result that could have prejudiced
Defendant objected to the choice of the particular screen, arguing that it
skewed the survey results by showing five Sponsored Links, when the average
results page includes fewer advertisements.
12 The questions asked of the participants were as follows:
1(a) If you wanted to purchase automobile insurance from GEICO, where on this
page would you “click” first?
1(b) Why do you say that?
2(a) Now if you clicked on GEICO (interviewer pointed to the first of the
Sponsored Links, which mentioned GEICO), what company’s or companies’ Web site
would you expect to go to?
2(b) Why do you say that?
3(a) Do you think the company that sponsors this listing is associated or
connected with any other company or companies? (If participants responded
affirmatively, they were asked the following two questions.)
3(b) What company or companies are they associated or connected with?
3(c) Why do you say that? (After answering this question, participants were
informed that the survey was complete.
13 These figures are based on an average of the confusion registered with
regard to each of the five Sponsored Links that appeared on the Web page.
14 Defendant and the Court noted that many of those respondents explained that
they would click first on one of the Sponsored Links to purchase insurance to
save money or to get price quotes. These explanations belie the conclusion that
they were confused about GEICO.
15 No respondent in the control group expressed confusion when asked
whether clicking on one of the NIKE Sponsored Links would direct him to GEICO’s
Web site. The professor thus concluded that respondents’ confusion in the test
group resulted from “the positioning, heading and/or content” in the
insurancerelated ads. (Expert Report at 8). This absence of confusion when faced
with NIKE ads alongside organic listings for “GEICO” also refutes the allegation
that the use of the trademark as a keyword, without more, causes a likelihood of
16 Further complicating the analysis, certain Web browsers may significantly
change the look of the pages seen by real users. For example, Internet Explorer
removes shading and dividers.