Internet Trademark Case Summaries

King Pharms., Inc. v. ZymoGenetics, Inc.

2009 WL 4931238 (E.D. Tenn. Dec. 10, 2009)

Plaintiff King Pharmaceuticals, Inc. (“King”) sold topical thrombin blood clotting drugs under the registered mark THROMBIN-JMI.  Defendant ZymoGenetics, Inc. (“ZymoGenetics”) sold a competing topical thrombin product under its RECOTHROM mark.  Between February 2008 and August 2009, King’s share of the hemostatic modifier market declined from 41.3% to 35.3%.  King claimed that it lost customers due to ZymoGenetics’ marketing practices, including ZymoGenetics’ purchase of “Thrombin-JMI” and variations thereof as keywords using Google’s AdWords program.  When a consumer searched for “Thrombin-JMI,” the search results included sponsored links for RECOTHROM with links to the RECOTHROM website.  ZymoGenetics cancelled its use of “Thrombin-JMI” as a Google AdWord after it learned King filed this suit and agreed not to use this keyword in the future.  ZymoGenetics claimed that it received only 84 clicks as a result of the “Thrombin-JMI” keyword purchases.  In contrast, the generic keyword “Thrombin” resulted in 48,802 impressions and 803 clicks.  Despite ZymoGenetics’ cancellation of its “Thrombin-JMI” keyword purchases, King filed a motion for a preliminary injunction to enjoin Zymogenetics’ keyword purchases.  The district court denied King’s motion.  Because ZymoGenetics stopped using the THROMBIN-JMI mark as a keyword and agreed not to do so in the future, the court held that King could not establish that it would suffer irreparable harm without the injunction.