no initial interest confusion from a deactivated product page that lists zero results

Alsa Refinish LLC v. The Home Depot, Inc., 2025 WL 2014281, No.2:23-cv-09965-SVW (C.D. Cal. Mar. 18, 2025)

Previousdiscussion of related case by same plaintiff. The Home Depot “sells homeimprovement products, including a wide assortment of paints and paint products,at brick-and-motor locations and through its website.” It sells products,including paint, from third parties.  

Alsa also sells paint and claimed to own trademarks in “Alsa,”“Alsa Chrome Paint,” “Alsa Easy Chrome,” “Easy Chrome,” and “Alsa Refinish.” Between2013 and 2019, Alsa sold its products on Home Depot website as a third-partyvendor, authorizing Home Depot to use its marks on the “landing pages” for Alsa’sproducts. When the relationship ended, Home Depot deactivated all the landingpages for Alsa’s products. Thus, a search on HomeDepot.com for “Alsa EasyChrome” wouldn’t return any products. But, for at least some time, someoneusing Google or a similar third-party search engine who searched for “HomeDepot” plus the name of one of Alsa’s products, would get a result thatincluded the inactive landing pages. Clicking on those links would show resultslike this:

Screenshot showing zero results for Alsa on Home Depot's site

Alsa alleged that it “never intended to sell productsthrough Defendant’s website or stores” and that it “believes that Defendant hasnever sold Plaintiff’s products on Defendant’s websites or stores.”

The court initially denied Home Depot’s motion to dismissbecause, “taking Plaintiff’s allegation that it never had a vendor relationshipwith Defendant as true, Defendant’s use of Plaintiff’s mark in inactive productpages could confuse consumers into thinking Defendant and Plaintiff had a pastaffiliation.” (Why would that be actionable? Why would that cause harmsufficient to trigger Article III standing? Ugh.)

Now, on summary judgment, the court found confusionunlikely. Sleekcraft isn’t well suited for internet search results; thisisn’t exactly a pure internet search case, but it’s closer to that than to the Sleekcraftinquiry into “whether two competing brands’ marks are sufficiently similar tocause consumer confusion.” Thus, the court used the two-factor test outlined inMulti Time Machine v. Amazon, which asks courts to consider: “(1)Who is the relevant consumer; and (2) What would he reasonably believe based onwhat he saw on the screen?”

The relevant reasonable consumer in this case is “areasonably prudent consumer accustomed to shopping online” who is of moderatesophistication. This factor “weighs against a likelihood of confusion, but onlyslightly.”

For (2):

A reasonable consumer viewingDefendant’s inactive product landing pages would believe that Defendant doesnot sell Plaintiff’s products. That is, after all, exactly what the webpagesays: “Sony, there are no products available online or in your local store.”This is not confusing or deceptive, as it is true. Defendant no longer sellsPlaintiff’s products.

There were some context clues that “may” lead consumers to believe that Home Depot sold Alsa products in the past: (1) an option to refine search results to include “Alsa Refinish,” because “[s]tores like Defendant typically do not provide an option to refine search results by a given brand unless they actually sell products from that brand,” and (2) “that there even is a product page for Plaintiff’s products, albeit inactive, suggests that Defendant at one point sold those products.” The court relied on (2) to deny the motion to dismiss. (I note that, among other things, this is really more of a false advertising theory, since it’s clear that they don’t sell Alsa products now, which is why the truth of the past relationship matters.) However, the summary judgment record was uncontested: Alsa did sell products with Home Depot for six years.

Also, Alsa had no evidence of actual confusion. “Plaintiffsupplies several posts from online forums for vehicle enthusiasts discussingwhether Plaintiff’s products were available on Defendant’s website. But theseposts were made during the Vendor Period, when Defendant had Plaintiff’spermission to use the Alsa Marks on its website.”

And there was no initial interest confusion:

Here, it may certainly be the casethat, after reaching the inactive landing product pages, consumers move on fromthat page to Home Depot’s website overall, where they may purchase competingproducts. But at most this is evidence of diversion, not confusion. There is noreason to think that consumers would be confused as to the source of any of thegoods on Defendant’s webpage, as each product on Defendant’s page is clearlylabeled.

Because the false allegation that Alsa never sold on HomeDepot was the only reason that the court denied the motion to dismiss, thecourt ordered its lawyers to show cause why they didn’t violate Rule 11.