9th Circuit Opinion allows use of trademark in domain name

The 9th Circuit yesterday, in Toyota Motor Sales U.S.A. Inc. v. Tabari, No. 07-55344 (9th Cir. July 8, 2010), released an important decision on the use of another's trademarked term in a domain name. 

 The Tabaris owned and operated an auto brokerage business named Fast Imports.  They assisted consumers in finding the best deals on cars, especially Lexus cars.  The Tabaris offered their services on the internet at the domains buy-a-lexus.com and buyorleaselexus.com. 

 The 9th Circuit held that the Tabaris’ use of the string “lexus” in their domain names was a permissible “nominative fair use.”  The court also defined a “relevant consumer” as being a reasonably prudent consumer who accustomed to shopping online; the kind of consumer likely to visit the Tabaris’ website when shopping for an expensive luxury car; and who is generally quite sophisticated and won’t be fooled into confusing the Tabaris’ website with an official Lexus website.

 The court also appeared to approve the use of trademarked terms in metatags as well as domain names: “One way or the other, the Tabaris need to let consumers know that they are brokers of Lexus cares, and that’s nearly impossible to do without mentioning Lexus . . ., be it via domain name, metatag, radio jingle, telephone solicitation or blimp.”