North American Medical Corporation v. Axiom Worldwide, Inc.

522 F.3d 1211 (11th Cir. 2008)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P designs and manufacturers traction devices. D is a competitor of P and manufactures the same types of devices. D used two of P's registered trademarks on its website within meta tags. D's website never displayed P's trademarked but by including the terms within its meta tags D was able to influence Internet search engines. If a computer user entered the trademarked terms into Google's Internet search engine, Google listed D's website as the second most relevant search result. Google also provided the searcher with a brief description of D’s website, and the description included these terms and highlighted them. D also represented in various ways that an affiliation exists between NASA and D or between NASA and D's DRX 9000. D also asserted in advertisements that the DRX 9000 is FDA 'approved.' P sued D and the district court issued a preliminary injunction prohibiting D from using P's trademarks within meta tags and prohibiting D from making the challenged statements about the DRX 9000. The district court specifically found that D's use of P's trademarks created a likelihood of confusion, and the court also found that D's advertising statements are literally false and material to consumers' purchasing decisions. D appealed. D contends that P failed to establish a substantial likelihood of success on the merits. D claims its use of the trademarks in invisible meta tags is not a 'use in commerce' and does not create a likelihood of confusion. D argues that the district court erred by categorically presuming that any plaintiff with a viable unfair competition claim will always suffer irreparable harm in the absence of a preliminary injunction.