San Francisco (CA) – An online perfume seller has lost its trademark dilution lawsuit appeal against auction giant ebay.com.  ebay argued that perfumebay.com had such a similar looking name that it confused consumers into clicking the wrong websites.  The two companies took the battle to United States District Court and then to the 9th Circuit Court of Appeals.

Judge Rawlinson wrote the opinion and found the perfume company used names that were nearly identical to ebay.  Back in 1998, perfumebay.com owner Jacquelyn Tran applied for a trademark for the domain name and also perfume-bay.com.  eBay opposed the trademark and filed papers with the United States Patent and Trademark Office.  The two companies agreed to talk it out and suspend any patent proceedings, but those talks broke down.

Tran told the court that she wasn’t trying to deceive anyone at all because perfumebay.com was named because she envisioned a bay filled with ships importing perfumes.  But in the lower district court, the judges found that there are no pictures of ships or a bay on Tran’s websites and indeed that there was nothing on the sites – either in text or pictures - to even suggest that there were perfume-filled ships anywhere on the site.  “Tran never explained on her web site at any time that the name Perfumebay was intended to suggest a bay into which products are brought by ship from abroad,’ said the judges.

Tran also admitted that she sometimes would capitalize the b in perfumeBay much in the same way the b in eBay is capitalized.  Tran told the court she did this because, “it was a common thing she saw online where companies would capitalize the first letter of the first word if they had separate words.”  During litigation though, she stopped capitalizing both the p and b in perfumebay.com.

Tran must now find another name for her websites, but as is typical with such lawsuits, she has vowed to appeal.