Internet Trademark Case Summaries
Pepper Patch, Inc. v. Bell Buckle Country Store, Inc.
2006 WL 2037560 (M.D. Tenn. Jul 18, 2006)
Plaintiff sold sauces under the federally registered mark JEZEBEL’S SAUCE. Defendant marketed a sauce under the name “Jezebel Sauce.” Plaintiff sued for infringement and false designation of origin, and defendant counterclaimed for cancellation of plaintiff’s registration on genericness grounds. Plaintiff moved for summary judgment on defendant’s counterclaims. Before addressing plaintiff’s motion, the court noted that “[f]or years southerners have prepared a home-made hot sauce called ‘jezebel sauce,’” and that the name of plaintiff’s product “was the actual and only name of the sauce from the time it was first marketed by Pepper Patch to the present day.” The court then granted plaintiff’s motion. Of interest here was the court’s discussion of search engine results submitted by the parties, apparently in relation to defendant’s genericness counterclaim. According to the court, “each party conducted Internet searches for usages and variation of the term, ‘jezebel’ and ‘jezebel sauce,’ which resulted in thousands of ‘hits.’” Plaintiff’s search of the wording “jezebel sauce” revealed 34,800 hits, and plaintiff’s review of the first 100 hits revealed plaintiff’s product as the only one using the possessive form (i.e., JEZEBEL’S). But the court found that plaintiff’s affidavit lacked foundation because the witness did not look at any of the hits beyond the first 100. Defendant also relied on Internet research in asserting third-party uses of “jezebel’s sauce” in its possessive form. The court held, however, that defendant’s assertions were not evidence in the absence of any supporting affidavits or other documentation to substantiate its search. In closing, the court stated that it “considers the Internet searches only to establish context for the dispute,” and that the evidence did not affect the court’s legal analysis.