A degree of scepticism is observed in public response to the trademark infringement lawsuit filed against Microsoft by a small St. Louis design company for using the Bing name on their heavily publicized new search engine. Is this just a rally for publicity on behalf of the plaintiff? The case appears questionable, but there may be grounds for infringement nonetheless.
Bing! Information Design has been in business for around ten years using the Bing trademark, but similarity of a mark does not implicitly constitute trademark infringement. The proximity of goods and services is an important factor – if operating in two very separate markets, it’s much less likely that infringement will occur. However, even if the goods are considered dissimilar, favor goes to the priority mark. Microsoft is unequivocally the “stronger” brand name, whether they got there first or not.
But it’s even more complicated than that. It’s clear that Microsoft and Bing! Information Design are operating in distinct markets, but considering some similarities between the two it could be reasonable to think that either company would diverge into the other market. Bing! Information Design isn’t selling dictionaries, they’re operating in (amongst other things) “Advertising via electronic media and specifically the internet;”. [1], which sounds remarkably similar to “advertising services; dissemination of advertising for others via the Internet;” [2]. Let’s face it, Bing isn’t making money for serving search results, they’re making money from advertising and partnerships.
If we assume then that the proximity of goods is not distant enough to completely rule out infringement, then there might be a case for “unfair competition and tortious interference with business expectancy”. Probably the best evidence will come as proof of actual confusion and damages to the business as a result of Microsoft’s use of the Bing name.
But who’s really expecting Bing to get the axe? A press release sent out by the plaintiff’s lawyer announcing the lawsuit is clear evidence that they want this to be publicized. But for what reason – public support, or public relations?
