Boston Duck v. Super Duck: Court Rules That Sponsored Linking Can Ruffle Feathers

In Boston Duck Tours, LP v. Super Duck Tours, LLC, 527 F. Supp. 2d 205 (D. Mass. 2007), the District Court of Massachusetts ruled that sponsored linking qualifies as 'use in commerce' for purposes of trademark infringement under the Lanham Act. Although the court ultimately found no likely consumer confusion in this case, in holding that sponsored linking falls within the purview of the Lanham Act, the court joins a growing number of circuits and districts that have failed to take a cue from well-settled, and clearly analogous, offline trademark principles. Rather, these courts seem inexplicably intent on reinventing the wheel and expanding the scope of Lanham Act protection to include Web-based activities that are virtually imperceptible to consumers. This line of case law allows plaintiffs to subvert the 'use' requirement by affording them a cause of action for trademark infringement against Web sites and advertisements on which consumers never actually perceive the allegedly infringed mark.