FOR IMMEDIATE RELEASE
Los Angeles, California – June 5, 2015 – Last Friday, the Hon. Consuelo B. Marshall of the U.S. District Court for the Central District of California awarded a summary judgment in favor of merchant advocacy website CardPaymentOptions.com (CPO), dismissing the trademark infringement claims made by plaintiff International Payment Services, LLC (dba ElitePay Global). The Court found that CPO’s use of the ElitePay Global mark in a Google AdWords advertisement promoting its review of the company constituted nominative fair use and was not an infringing use of a trademark.
Filed in mid-2014 by Utah-based merchant account provider ElitePay Global, the lawsuit accused CPO, a Texas-based review website, of engaging in trademark infringement by running a Google AdWords campaign containing the keyword “ElitePay Global.” The search engine ad featured the text “ElitePay Global Review – CardPaymentOptions.com” and linked Google users to CPO’s review of ElitePay Global which rated the company’s sales tactics, contract terms, and customer service. CPO’s review gave ElitePay Global an overall grade of “C-” on an “A” through “F” scale and featured over 40 negative user reviews of the company. ElitePay Global nevertheless argued that CPO was attempting to pose as ElitePay Global, or trick readers into believing that they had landed on an ElitePay Global-owned webpage.
The Court rejected this argument after determining that CPO’s article was a review of ElitePay Global’s services and the use of the trade name fulfilled all of the necessary conditions to be considered nominative fair use. The Court specifically found that CPO’s use of ElitePay Global’s name and logo was necessary to identify which service was being reviewed, and that the mentions of ElitePay Global were neither excessive nor intended to suggest an affiliation with ElitePay Global. When considering this last point, the Court dismissed ElitePay Global’s suggestion that a “C-” grade could be confused for an endorsement because “there is no such thing as bad publicity.”
“This ruling affirms the right of review websites to promote their content without having to fear frivolous trademark infringement judgments,” said CPO Founder Phillip Parker. “Abusing trademark law in an effort to suppress unfavorable reviews is a desperate and unethical tactic that, as this ruling indicates, should not warrant a trial.”
In an attempt to avoid summary judgment and seek extended discovery, ElitePay Global also attempted to argue that CPO is a paid subsidiary of payment processors rather than an independent review website. The Court found that ElitePay Global failed to provide any evidence supporting such a claim, despite previously receiving extra time to gather facts. “ElitePay Global’s assessment of the CPO website was just plain wrong and the court saw through their empty claims,” said Parker. “We pride ourselves on being one of the only independent and unbiased resources for business owners seeking payment processing reviews.”