Eternity Travel is an online service provider of a hotel directory that includes user-submitted reviews. We disclaim any affiliation with, endorsement by, association with, or sponsorship of the hotels listed within our directory. Eternity Travel’s display of hotel names is a fair use under the Lanham Act. Eternity Travel’s services do not infringe upon or dilute the trademarks or service marks of the hotels listed within our directory. This Notice and Disclaimer is intended to provide notice of and support for our good faith actions with respect to our legitimate use of third-party hotel names.
The Company is not responsible or liable in any manner for any of the user-submitted reviews posted on this site, which are the independent views of individuals who are not affiliated with Eternity Travel. We do not control and are not responsible for what users post on the site and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable user-submi tted content that may be posted on the site.
Nominative Fair Use Within An Index or Directory
Eternity Travel does not infringe on the trademarks of the hotels listed within our directory. Our use of these marks is a nominative fair use under the law.1 We use only as much of the trademark holder’s mark as is necessary to reference the service that is offered.2 We do nothing to suggest that the mark’s owner is associated with our site,3 and we conspicuously display a disclaimer on our website that disavows association with the hotels.4
Nominative Fair Use Within Meta Tags and Meta Data
Eternity Travel’s use of hotel trademarks within meta tags and meta data is also non-infringing. We do not compete with the services offered by the hotels, and we do not use meta tags as a means to divert our competitors’ traffic to our websites.5 We use meta tags only to describe the content of our websites, which has been recognized as a nominative fair use.6
Nominative Fair Use Within Post-Domain Paths
Eternity Travel may use the trademarks of the hotels listed in our directory within our post – domain paths. This use of these marks is only for the purposes of organizing the subdirectories of our website.7 Since we do not use these marks within our domain names, our use of these marks within post-domain paths is non-infringing.8
Contributory Infringement or Vicarious Liability for Website User’s Trademark Infringement
Eternity Travel’s directory sites allow users to contribute independent reviews of the hotels listed in our directories. We cannot be held liable for contributory infringement because we do not induce our site’s users to infringe upon the marks of these hotels.9 Additionally, we cannot be held vicariously liable for the infringing actions of our site’s users. We do not exercise joint control over the users’ posts, we do not enter into actual or apparent partnerships with the users, and we do not grant the users the authority to bind Eternity Travel with their actions.10 We do not exercise control over any of the actions that may be alleged as infringing actions of our users.11
Trademark Liability for the Use of Contextual Advertising
The contextual ads displayed on our website generate links based on the content of our websites. We do not control the content of these ads, nor do we make use of hotel trademarks in generating these ads. Any use of trademarks in the generation of these ads originates in the advertising company.12 Furthermore, the use of trademarks by an advertising company is not a “use in commerce” as required by the Trademark Act because the trademarks do not appear in the contextual links.13 Therefore, we cannot be held liable for the infringing actions of our contextual advertising providers and our use of contextual ads is non-infringing.
1 Bihari v. Gross, 119 F.Supp.2d 309, 322 (S.D.N.Y. 2000).
2 Playboy Enterprises, Inc. v. Welles, 279 F.3d 796, 802 (9th Cir. 2002).
3 Playboy Enterprises, Inc. v. Welles, 279 F.3d 796, 802 (9th Cir. 2002).
4 Taubman Co. v. Webfeats, 319 F.3d 770, 776 -777 (6th Cir. 2003).
5 Aztar Corp. v. MGM Casino, 2001 WL 939070 (E.D.Va. 2001); Promatek Industries, Ltd. v. Equitrac Corp. , 300 F.3d 808 (7th Cir. 2002); Bernina of America, Inc. v. Fashion Fabrics Intern., Inc., 2001 WL 128164 (N.D.Ill. 2001); Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036 (9th Cir. 2003); Flow Control Industries Inc. v. AMHI Inc., 278 F.Supp.2d 1193 (W.D.Wash. 2003).
6 Trans Union LLC v. Credit Research, Inc., 142 F.Supp.2d 1029 (N.D.Ill. 2001); Playboy Enterprises, Inc. v. Welles, 279 F.3d 796 (9th Cir. 2002).
7 Interactive Products Corp. v. a2z Mobile Office Solutions, Inc., 326 F.3d 687 (6th Cir. 2003).
8 Patmont Motor Werks, Inc. v. Gateway Marine, Inc., 1997 WL 811770 (N.D.Cal. 1997).
9 Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 854 (1982).
10 Fonovisa, Inc. v. Cherry Auction, Inc. , 847 F.Supp. 1492, 1498 – 1499 (E.D.Cal. 1994).
11 Government Employees Ins. Co. v. Google, Inc., 330 F.Supp.2d 700, 705 (E.D.Va. 2004).
12 Rescuecom Corp. v. Google, Inc., 456 F.Supp.2d 393, 397 (N.D.N.Y. 2006).
13 1-800 Contacts, Inc. v. WhenU.Com, Inc., 414 F.3d 400, 403 (2nd Cir. 2005).
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