Judge rejects Blue Nile motion in trademark case

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Judge rejects Blue Nile motion in trademark case

By Michelle Graff

April 17, 2009

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Boston--A federal judge in Boston has denied a request by online diamond seller Blue Nile to dismiss two of the three allegations made against it in the trademark infringement case filed by Hearts On Fire.

Hearts On Fire filed suit against Blue Nile in June 2008 claiming that the online tactics employed by Blue Nile, including purchasing a search engine keyword for "hearts on fire," directing users to a sponsored link that subsequently sends them to Blue Nile's Web site, infringed upon Hearts On Fire's trademark, court papers show.

In addition, Boston-based Hearts On Fire claims in court papers that Blue Nile, which is not an authorized seller of Hearts On Fire's signature-cut stones, infringed by displaying trademarked text in the Blue Nile advertisement attached to the sponsored link and by its use of the search-results list generated within the Blue Nile Web site when users there search for the phrase "hearts on fire."

"Together, [Hearts On Fire] argues these uses constitute a course of conduct likely to confuse Internet shoppers, improperly diverting them to its competitor's Web site," court papers say.

According to court documents, Blue Nile was not asking the court to dismiss the allegation that the exact trademark "hearts on fire" appeared alongside Blue Nile's sponsored link.

"Blue Nile agrees that this allegation, if true, amounts to infringement," court papers state.

However, the Seattle-based online retailer asked the court to "dismiss the plaintiff's allegation that the defendant's use of the trademark to trigger the sponsored link" violates the Lantham Act, which dictates that any entity that uses a registered mark in connection with the sale of goods that is "likely to cause confusion, or to cause mistake or to deceive" could be held civilly liable.

"Likewise," court documents state, "the defendant argues that the plaintiff's third theory is unavailing because Blue Nile does not use the 'hearts on fire' trademark on its own Web site."

In a ruling issued late last month, however, U.S. District Court Judge Nancy Gertner, of the U.S. District Court for the District of Massachusetts, denied Blue Nile's request to dismiss the two allegations, ruling that there is a "likelihood of confusion" among consumers in this case.

Blue Nile did not respond to request for comment on the ruling.

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