Keyword suit with a twist: SkinStore.com v. NewSkinSpa.com

logo-skinstoreIn a complaint filed last week in federal court in California, Salu, Inc., the owner of the popular cosmeceutical site SkinStore.com has sued the owners of competitor NewSkinSpa.com for trademark and copyright infringement accusing them of copying the SkinStore.com html code and using it to create the site at NewSkinSpa.com. In so doing, SkinStore.com claims that NewSkinSpa.com has been able to obtain a higher Google ranking for search terms like “Hylexin,” a popular cosmeceutical product for under-eye dark circles.

This is not your typical trademark infringment by metatag case however. SkinStore claims that when its employees first discovered the www.newskinspa.com site in September, they viewed the html code through the “view – source” feature available on their Internet browser software, and discovered that “skinstore.com” repeatedly appeared within the code for the www.newskinspa.com website, which SkinStore.com claims proves that “the site had originally been created as a copy of the Skinstore.com website.”

The complaint goes on to allege that

employees of Salu have discovered that the website skinstore.com no longer maintains its high ranking when a search for the product “hylexin” is conducted using the Google.com search engine. Instead, the website “newskinspa.com” appears in exactly the same place in the search rankings that skinstore.com should appear. Upon information and belief, the Google search engine has identified the www.newskinspa.com website as a substitute or update of the www.skinstore.com website, and substituted the former in the latter’s place in search rankings for this product.

Salu also has discovered that Hogsett’s websites seota.com and zulumoon.com promote the product hylexin and contain links to the www.newskinspa.com website where customers can purchase that product. Upon information, the defendant’s conduct demonstrates that they knowingly have copied Salu’s web content to take over Salu’s high position in search rankings.

This is the first suit I am aware of where the damage alleged is a reduction in search rankings on Google. SkinStore’s theories are certainly interesting. I performed a few Google searches and got similar results to those referred to in the Complaint. I also noticed that SkinStore is purchasing sponsored links in Google’s AdWords program so their link appears at the head of the page when you search either “Hylexin” or “SkinStore.” Perhaps SkinStore will claim the cost of each click-through as their damages.

Complaint, Salu, Inc. v. Brenda Pitts and William Hogsett, E.D. Cal.

About 

Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.

Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.

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