No Injunction Against Software Blocker Listing Plaintiff’s Mark Among Products Being Blocked as Likely Nominative Fair Use

The court denied plaintiff’s motion for a preliminary injunction prohibiting defendant from using plaintiff’s mark on defendant’s website because defendant demonstrated its use was likely nominatively fair, defeating plaintiff’s showing it was likely to succeed on the merits. “⁠[Plaintiff] has not produced evidence suggesting that [defendant] has used [plaintiff’s] mark in any way other than listing the name of the website to explain what it is blocking. There is no evidence that suggests affiliation, sponsorship, or endorsement by [plaintiff]. Indeed, [defendant’s] use of the label ‘potentially unwanted program’ to describe [plaintiff’s] products implies anything but endorsement; customers told by [defendant] that [plaintiff’s] software might be unwanted are not likely to think that [plaintiff] endorses [defendant]. . . . A screenshot shows that [defendant] refers to the mark only once, by using the domain name download.driversupport.com. In this context, [defendant] is informing the user of the name of the website it is blocking; it is unclear how it could do so without using the domain name. [Defendant] has shown that its use of [plaintiff’s] mark here likely constitutes nominative fair use.”

PC Drivers Headquarters, LP v. Malwarebytes, Inc., 1-18-cv-00234 (TXWD 2018-04-23, Order) (Robert Pitman)

2018-04-25T12:05:02+00:00April 25th, 2018|Docket Report, Trademark|