Lingerie e-retailer Adore Me last week accused Rihanna's Savage x Fenty brand of infringing on its trademark by using keywords "adore us," which Adore Me alleges caused Google searches to lead potential Adore Me customers to the Savage site.
Adore Me on June 4 sent Savage x Fenty a cease-and-desist letter, according to its court filing. About four days later the practice appeared to stop, though Adore Me says it later learned it was "again in use by Defendant." At press time, the search result as described did not occur.
Savage x Fenty didn't immediately return a request for comment.
Adore Me pounced on its rival for a search result phenomenon that appears to have come and gone. Its lawsuit against Rihanna's brand may take longer.
The DTC lingerie brand claimed in its papers that Rihanna's company "has engaged in a pattern of willful and intentional acts designed to appropriate Adore Me's prestige and goodwill, including without limitation, by using a mark confusingly similar to the ADORE ME mark."
These two brands already vie for the attention of many of the same consumers. Generally speaking, whipping up confusion around a rival's trademark runs counter to laws that protect not only brands' intellectual property, but also consumers, according to Alan Behr, fashion industry attorney and partner at Phillips Nizer. But it's not clear that there was trademark infringement, nor that it was willful, he said by phone.
Proving that Rihanna's team was manipulating search in order to "cause deception in the marketplace is a hard case to win," because the "adore us" branding wasn't showing up in other materials like clothing labels or other venues like stores, according to Behr. Moreover, this case may be less of a trademark issue and more of an IT issue, he said. And it could be difficult to prove that the use of the keywords represents "a deliberate attempt to do something wrong."
That's in part because internet searches are often confusing, which could be caused by Google's algorithms rather than Savage x Fenty's marketing. "You can't decide a case like that in a summary judgment," Behr said. "You've got to go and get the facts. You've got to depose the programmers. Because this sounds like an IT case, to see was there an attempt to pinch the market in a way that would be considered unfair competition, or a violation of Google's own policies or trademarks."
While Adore Me in its lawsuit claims that "Savage's acts are willful, with the deliberate intent to trade on the goodwill of the ADORE ME Mark, cause confusion and deception in the marketplace, and divert customers of Adore Me's services to Savage," that, too, is hard to prove. That the keywords are no longer being used means little because it may simply reflect an "oops" rather than a scramble to cover up wrongdoing.
"It's a tech issue," Behr said.