The PYCNOGENOL case, discussed here previously, has been affirmed by the Ninth Circuit. Defendant, a competitor of plaintiff, placed plaintiff’s trademark in its website’s meta-tags. Such use caused confusion and therefore did not pass the Ninth Circuit’s test for nominative fair use. There is no discussion as to whether defendants use caused initial interest confusion or ‘regular’ confusion, nor was there any elaboration of the lower court’s concept that ‘unreasonably pervasive’ meta-tag use is too much meta-tag use.
Horphag Research v. Pellegrini, no. 01-56733 (9th Cir July 29, 2003).