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Keyword Lawsuit Morningware v. Hearthware


In Morningware Inc. v. Hearthware Home Products Inc., N.D. Ill, No. 09-4348, 11/16/09, the court relied on Rescuecom Corp. v. Google to hold that Hearthware’s purchase of plaintiffs trademark as keywords was an actionable use in commerce. This behaviour might also have initially confused consumers as to the source of its products.

The text of the ad in question reads: “The Real NuWave ® Oven Pro Why Buy an Imitation? 90 Day Gty.”  Morningware alleges that the topmost placement of Hearthware’s advertisement on the search results page coupled with the “Why Buy an Imitation?” statement demonstrates a false claim of product superiority over Morningware’s products, and that this misleads and/or confuses consumers into “believing that [Morningware]’s products are inferior to Hearthware’s because they are ‘Imitations,’ and thus fakes, of Hearthware’s products, which they are not.” In its decision the court declined to dismiss a product disparagement claim and State Law claims.



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