Nike Sues EMS Over Keyword Advertising

Copy of EMS’s Google Ad

Nike has filed a trademark infringement lawsuit against Eastern Mountain Sports (EMS) in the Federal District Court for the District of Oregon over the use of the term “Dri-FIT.” Dri-FIT is a trademark of Nike.

According to the complaint, EMS contracted with Yahoo, Google, and MSN search engines to send customers to its website when the term Dri-FIT is used as a search term. Nike noted that a user searching for Dri-FIT might click on the EMS advertisement and be taken to the EMS website, where they might buy Techwick clothing rather than a Dri-FIT product.

The products EMS’s ad leads to.The problem with this complaint is that EMS in fact sells Nike’s Dri-FIT products, and the ad apparently leads to them. Yes, visitors could find their way to EMS’s competing products, just as store shoppers might look at more than one similar product within their store.

Since EMS appears to be using the word Dri-FIT to lead to actual Nike Dri-FIT products, this could be considered to be valid product advertising, which would not be likely to create confusion.

Special thanks to footwear industry expert, Kerstin Johnson.

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