Internet Trademark Case Summaries

Fair Isaac Corp. v. Experian Info. Solutions Inc.

2009 WL 4263699 (D. Minn. Nov. 25, 2009)

Plaintiffs Fair Isaac Corporation and myFICO Consumer Services, Inc. (collectively, “Fair Isaac”) produced the “FICO” consumer credit rating scores. Fair Isaac owned federal trademark registrations for the marks FAIR ISAAC, FICO, and 300-850. A 350-850 FICO score is based on scoring algorithms tailored to an individual’s credit data. Fair Isaac’s credit scoring models have been based on its 300-850 scoring range since the late 1980s. Defendants Experian Information Solutions, Inc. (“Experian”), Equifax Inc., and Trans Union, LLC (“TransUnion”) operated credit reporting agencies that collected consumer data for credit ratings. In March 2006, defendants jointly created VantageScore, a credit score using the range 501-990, which competed with Fair Isaac’s FICO score system. Similar to Fair Isaac’s FICO scores, higher scores under the VantageScore 501-990 model represented a lower likelihood of credit risk. Fair Isaac sued defendants for trademark infringement and other Lanham Act claims based on VantageScore’s overlapping 501-850 scoring range. Fair Isaac alleged that both Experian and TransUnion purchased Fair Isaac’s marks 300-850, FAIR ISAAC, and/or FICO as search-engine keywords. Experian operated websites at freecreditreport.com, experiandirect.com, and creditreportnow.org. TransUnion operated its website at truecredit.com. Both defendants purchased Fair Isaac’s marks as keywords from several search engines, so that keyword-triggered sponsored advertisements for their respective web pages appeared on the search results page when Internet users searched for Fair Isaac’s marks. Fair Isaac argued that the use of its marks as search-engine keywords caused consumers to click to the competing websites in order to purchase their credit reports, and drew sales away from Fair Isaac.


The case went to a jury on Fair Isaac’s trademark infringement and unfair competition claims. The jury held for defendants on both claims, finding that Fair Isaac’s alleged 300-850 mark was not a valid, protectable trademark because the term “300-850” had not acquired secondary meaning.


Because Fair Isaac sought only an injunction on its keyword advertising claim (i.e., it did not seek damages) and because Fair Isaac’s passing off claim under Minnesota statutory law only allowed injunctive relief, there was no right to a jury trial on these two equitable claims and the court decided these claims after the trial in this decision. The court rejected Fair Isaac’s keyword advertising claims based on all of its allegedly infringed marks. Fair Isaac’s claim based on its alleged 300-850 mark failed because of the jury’s finding that the mark was unprotectable. The court also rejected, with little discussion or analysis, Fair Isaac’s keyword claims based on its FAIR ISAAC and FICO marks. Although those marks were protectable, the court stated that the evidence presented at trial “did not support a credible inference” that defendants’ purchases of these marks as keywords was likely to confuse consumers. The only such evidence presented at trial, the testimony of Fair Isaac’s expert that the keyword advertising was likely to cause confusion, “lack[ed] credibility.” In its decision, the court did not discuss the content of the advertisements triggered by defendants’ keyword purchases. The court also rejected Fair Isaac’s passing off claim because defendants’ actions “did not cause [consumer] deception or likely deception and did not induce consumers to purchase [defendants’] products or services in the belief that they were those of Fair Isaac.” According to the court, any deception or confusion was caused by consumers’ general unfamiliarity with “the intricacies of the credit scoring industry.”