On Appeal from the United States District Court for the Southern District of New York Plaintiff-Appellant 1-800 Contacts, Inc., appeals from a judgment entered in the United States District Court for the Southern District of New York (Castel, J.), granting a motion for judgment on the pleadings in favor of Defendant-Appellee JAND, Inc., d.b.a. Warby Parker. The Complaint alleges that Defendant-Appellee used Plaintiff-Appellant’s trademarks — its brand name 1-800-Contacts and related variations — in keyword search advertisements in violation of the federal Lanham Act, 15 U.S.C. §§1114, 1125(a), and New York State common law. Defendant-Appellee allegedly engaged in a plan to purchase search engine keywords consisting of Plaintiff-Appellant’s trademarks for use as keywords in online advertising campaigns and then designed misleading paid advertisements, so that customers searching for Plaintiff-Appellant’s website by typing “1-800-Contacts” into a web browser would be diverted to Defendant-Appellee’s website instead. However, Plaintiff-Appellant does not claim that Defendant-Appellee actually used the former’s trademarks other than purchasing them as keywords in the online search engine auctions. We now reiterate that the mere act of purchasing a search engine keyword that is a competitor’s trademark does not alone, in the context of keyword search advertising, constitute trademark infringement. Upon examination of the remaining allegedly infringing components of Defendant-Appellee’s search advertising campaign — i.e., the resulting advertisement itself and landing webpage linked within, neither of which displays 1-800-Contact’s trademarks — we conclude that Plaintiff-Appellant failed to plausibly allege any likelihood of consumer confusion under this Circuit’s test in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961). Thus, we AFFIRM the district court’s judgment. EUNICE LEE, C.J. Plaintiff-Appellant 1-800 Contacts, Inc. (“1-800″), appeals from a judgment entered in the United States District Court for the Southern District of New York (Castel, J.), granting a motion for judgment on the pleadings in favor of Defendant-Appellee JAND, Inc., d.b.a. Warby Parker (“Warby Parker”). The Complaint alleges that Warby Parker used 1-800′s trademarks — its brand name 1-800-Contacts and related variations — in keyword search advertisements in violation of the federal Lanham Act, 15 U.S.C. §§1114, 1125(a), and New York State common law. Warby Parker allegedly engaged in a plan to purchase 1-800′s trademarks as keywords in online advertising campaigns and then designed misleading paid advertisements, so that customers searching for 1-800′s website by typing “1-800-Contacts” into a web browser would be diverted to Warby Parker’s website instead. However, 1-800 does not claim that Warby Parker actually displayed or used the former’s trademarks; it alleges only that Warby Parker purchased search engine keywords consisting of its trademarks in the online search engine auctions. We now join the consensus view and decide that the mere act of purchasing a competitor’s trademarks in the context of keyword search advertising does not constitute trademark infringement. Upon examination of the remaining allegedly infringing components of Warby Parker’s search advertising campaign — i.e., the advertisement itself and landing webpage linked within — we conclude that 1-800 failed to plausibly allege any reasonable likelihood of consumer confusion under this Circuit’s test in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961). Thus, we AFFIRM the district court’s judgment. BACKGROUND 1-800-Contacts is an online — rather than brick-and-mortar — retailer of contact lenses that consumers access solely through its website 1800contacts.com. Many consumers navigate to the website by searching for 1-800′s registered trademarks (“Marks”) on search engines, such as Google, and finding 1-800′s webpage in the search results. These trademarks include “1800 Contacts,” “1 800 Contacts,” “1800contacts.com,” and “1800contacts” (collectively, “1-800′s Marks”). Warby Parker was originally an online retailer of eyeglasses only. In 2013, it opened brick-and-mortar stores. Then, around November 2019, Warby Parker entered the online contact lens marketplace by selling contact lenses on its website warbyparker.com. As a result, Warby Parker and 1-800 became competitors in the online sale of contact lenses. Warby Parker uses the trade name and trademark “Warby Parker.” This dispute revolves around Warby Parker’s purchase at auction of keywords including 1-800′s Marks in a type of internet marketing called search (or keyword) advertising. We therefore begin with a brief explanation of how search advertising works. As this is an appeal from the district court’s grant of a Rule 12(c) motion for judgment on the pleadings, we assume the facts alleged in the complaint to be true and draw all reasonable inferences in favor of the nonmovant, 1-800. See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). When online shoppers search for “1-800 Contacts” or variations of its trademarks by typing those terms into a search engine, they receive two main types of search results: (1) organic, or natural, results; and (2) sponsored, or paid, results — both of which provide links to webpages. The first category, organic results, includes the webpages that the “search engine’s algorithm deems to be most relevant to the shopper’s search.” Compl. 36. The second category, paid results, are based on which advertisers paid the most to have their advertisements shown in response to the search term — also known as search advertising. Id. At the time of the dispute, paid results included a small designation labeling the result as an “Ad” in the top, left-hand corner. Google Ads (formerly Google AdWords) is Google’s platform through which advertisers can bid to place advertisements in Google’s search results.1 Using Google Ads, an advertiser can “strategically place advertisements” in a search term’s results at, or near, the top of the results page, by outbidding the competition for that term or keyword. Id. 42. Further, most search engines, including Google’s, do not limit which keywords an advertiser can bid on. Thus, an advertiser can bid on a competitor’s brand or trademarks so that the advertiser’s ad appears in response to a consumer’s search for the competitor’s marks. For the purposes of this case, the search result for a purchased keyword contains three relevant components: (1) the advertisement copy; (2) a uniform resource locator (“URL”), i.e., website link; and (3) the landing webpage the consumer arrives at after clicking on the aforementioned URL. I. 1-800′s Complaint Allegations 1-800′s Complaint, filed in August 2021, alleges that Warby Parker’s use of 1-800′s Marks in search advertising constituted trademark infringement and unfair competition under the federal Lanham Act and New York State law.2 Specifically, Warby Parker, as a new entrant into the online contact lens market, “devised a plan to trade on the great strength and goodwill of [1-800's Marks] by” engaging in a three-step plan to (1) purchase 1-800′s Marks as keywords, and (2) show source-ambiguous ads to consumers searching for 1-800′s website, in order to (3) direct them to a Warby Parker landing webpage that mimicked 1-800′s homepage — so that consumers would believe they were actually on 1-800′s official website, or at the very least, a website that was affiliated with, or approved by, 1-800. Compl. 55 (arguing that Warby Parker used “keyword advertising, ambiguous ads, and a deep-linked webpage” to “confuse consumers”).3 In other words, 1-800 accuses Warby Parker of “mislead[ing] consumers about the source or affiliation of the advertiser…to exploit the favorable reputation consumers associate with the 1 800 CONTACTS Marks.” Id.
