FOR PUBLICATION                                     Jul 16 2014, 9:59 am




ATTORNEY FOR APPELLANTS:                    ATTORNEY FOR APPELLEE:

JONATHAN A. WATSON                          MICHAEL S. BERGERSON
Passaro, Kahne & Taylor                     Law Office of Michael S. Bergerson
Benton Harbor, Michigan                     Michigan City, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

SERENITY SPRINGS, INC. and LAURA            )
OSTERGREN,                                  )
                                            )
     Appellants-Defendants,                 )
                                            )
             vs.                            )     No. 46A04-1309-MI-470
                                            )
THE LAPORTE COUNTY CONVENTION               )
AND VISITORS BUREAU, by and                 )
through its Board of Managers,              )
                                            )
     Appellee-Plaintiff.                    )


               APPEAL FROM THE LAPORTE SUPERIOR COURT
                   The Honorable William J. Boklund, Judge
                        Cause No. 46D04-1101-MI-1


                                  July 16, 2014


                           OPINION – FOR PUBLICATION

MAY, Judge
        Serenity Springs appeals a judgment in favor of the LaPorte County Convention

and Visitors Bureau (“the Bureau”) that permanently enjoined Serenity Springs from

using the internet domain name visitmichigancitylaporte.com and transferred the domain

name to the Bureau. As “Visit Michigan City LaPorte” was not a protectable trade name

and Serenity Springs’ use of it was not unfair competition, we reverse.

                          FACTS AND PROCEDURAL HISTORY

        We set forth the facts underlying this appeal in Serenity Springs v. LaPorte Cnty.

Convention & Visitors Bureau, 986 N.E.2d 314, 317-19 (Ind. Ct. App. 2013) (hereinafter

“Serenity Springs I”):1

                The Bureau . . . is “the official destination marketing organization
        that represents the visitor industry and communities to create economic
        growth from visitor expenditures.” The Bureau’s goal is to increase
        tourism in LaPorte County, and in doing so, the Bureau promotes a number
        of hotels and attractions in the area. Serenity operates a hotel resort in
        LaPorte County, which is one of the businesses promoted by the Bureau.
                In early 2009, the Bureau contracted with a private marketing firm to
        conduct a branding study for the purposes of identifying new and better
        ways to promote tourism in the area. On September 9, 2009, the Bureau
        held a public meeting at which the results of the branding study were
        announced, and a representative of Serenity was in attendance. The
        Bureau’s representatives announced that the phrase “Visit Michigan City
        LaPorte” had been identified as the branding identifier for the area.
                Immediately after the meeting, an employee of Serenity registered
        the domain name “visitmichigancitylaporte.com” at [the owner’s] behest
        and set it up to redirect internet traffic to Serenity’s website. Later that day,
        an employee of the Bureau attempted to register the same domain name,
        but discovered that it had already been purchased and was being used to
        direct internet traffic to Serenity’s website. The Bureau was able to register
        a number of similar domain names, including visitmichigancitylaporte.org,
        visitmichigancitylaporte.net, and michigancitylaporte.com.

1
   We directed the trial court on remand to limit its consideration to evidence and claims the Bureau had
already presented, and to receive no new evidence.
                                                      2
        Thereafter, the Bureau sent a cease-and-desist letter to Serenity
claiming that Serenity had infringed its trademark and committed
cybersquatting by registering visitmichigancitylaporte.com.            Serenity
responded that it had been unable to find any federal or state trademark
registrations for Visit Michigan City LaPorte and further claimed that (1)
Serenity had not committed trademark infringement because it registered
and began using the visitmichigancitylaporte.com domain name before the
Bureau made any commercial use of the designation Visit Michigan City
LaPorte, and (2) that the designation was not protectable as a trademark
because it was merely descriptive and had not acquired distinctiveness.
        On April 29, 2010, the Bureau filed an application with the Secretary
of State to register “‘Visit Michigan City LaPorte’ and logo” as a trademark
under the Indiana Trademark Act. In its application, the Bureau indicated
that the mark was first used in commerce on September 9, 2009, and
disclaimed any rights to the words “Michigan City” or “LaPorte.” The
Bureau received a certificate dated May 13, 2010 indicating that “Visit
Michigan City LaPorte” had been registered as a trademark with the
Secretary of State. The certificate also indicated that the mark was first
used on September 9, 2009, and the words “Michigan City LaPorte” had
been disclaimed.
        On May 26, 2011, the Bureau sent another cease-and-desist letter to
Serenity, again asserting that Serenity was infringing its rights in the now-
registered trademark. The Bureau attached a copy of the certificate of
trademark registration to the letter and informed Serenity that the letter
would be its final attempt to resolve the matter before taking legal action.
        Serenity sent a response letter to the Bureau on June 1, 2010. In the
letter, Serenity again asserted that it was the first party to use the mark in
commerce, and argued further that the Bureau’s registration of the mark did
not affect Serenity’s common-law rights to use the mark or confer
retroactive trademark rights. Serenity stated that it was willing to assign
the domain name to the Bureau if it could provide proof that it first used the
mark in commerce on or before September 9, 2009. Serenity argued that if
the Bureau had not used the mark in commerce by that date, it had
fraudulently misrepresented the date of first use on the application for
trademark registration, which would result in cancellation of the
registration.
        On January 4, 2011, the Bureau filed a complaint against Serenity
alleging trademark infringement, cybersquatting, and unfair competition.
The Bureau also sought and obtained a preliminary injunction prohibiting
Serenity from using the domain name. The matter proceeded to a bench
trial on March 8, 2012, and the trial court entered judgment in favor of the
Bureau on May 1, 2012. The trial court concluded that Serenity had
                                      3
        violated Indiana law by committing trademark infringement and
        “cybersquatting that approaches cyberpiracy[.]”            The trial court
        permanently enjoined Serenity from using the Visit Michigan City LaPorte
        designation or the domain name visitmichigancitylaporte.com, and further
        ordered Serenity to transfer the domain name registration to the Bureau.

(Citations and footnote omitted.)

        In Serenity Springs I, we determined the designation “Visit Michigan City

LaPorte” was not subject to protection because it was merely descriptive of the

geographic location of the goods and services the Bureau promotes, and it had not

acquired a secondary meaning through actual use of the mark prior to Serenity Springs’

first use. Id. at 325. As the Bureau had asserted additional claims, including common-

law unfair competition, that the trial court had not yet addressed, we remanded. Id. at

327.

        On remand, the trial court found Serenity Springs had committed seven common-

law torts: common-law trade name infringement, a common-law tort based on Serenity

Springs’ intent to deceive, common-law acts amounting to cybersquatting, unfair

competition in the form of conversion of intangible value, tortious interference with a

contract or business relationship, tortious behavior in the nature of “palming off,”2 and

general unfair competition. It permanently enjoined Serenity Springs from using the




2
  The tort of “passing off” (also called “palming off”) is a species of unfair competition that emerged in
the nineteenth century as a type of fraud. Keaton & Keaton v. Keaton, 842 N.E.2d 816, 819 (Ind. 2006).
Under this doctrine, liability is imposed for the intentional misrepresentation of goods or services as those
of another. Id.


                                                     4
mark “Visit Michigan City LaPorte” or the domain name visitmichigancitylaporte.com.

The case now before us is an appeal from the trial court’s decision on remand.

                            DISCUSSION AND DECISION

        The trial court sua sponte entered findings of fact and conclusions of law. When

the trial court enters such findings sua sponte, the specific findings control only as to the

issues they cover, and a general judgment standard applies to any issue on which the

court has not entered findings. Scoleri v. Scoleri, 766 N.E.2d 1211, 1214-15 (Ind. Ct.

App. 2002). In reviewing the judgment, we determine whether the evidence supports the

findings and the findings support the judgment. Id. at 1215. We will reverse only when

the judgment is clearly erroneous, i.e., when it is unsupported by the findings of fact and

conclusions entered on the findings. Id. For findings of fact to be clearly erroneous, the

record must lack probative evidence or reasonable inferences from the evidence to

support them. Id. In determining the validity of the findings or judgment, we consider

only the evidence favorable to the judgment and all reasonable inferences to be drawn

therefrom, and we will not reweigh evidence or assess credibility of witnesses. Id. A

general judgment may be affirmed on any theory supported by the evidence presented at

trial. Id.

        1.    Trade Name Infringement

        The trial court first addressed “Tort in the Nature of Trade Name Infringement,”

(App. at 6), determining “the Bureau’s brand is a trade name under which the Bureau

conducts business” and the Bureau “made first use of the brand as a trade name and in so


                                             5
doing gave it value.” (Id. at 9.) As “Visit Michigan City LaPorte” is not a protectable

trade name, there could have been no trade name infringement.

       A trade name is “a word, name, symbol, device, or other designation, or a

combination of such designations, that is distinctive of a person’s business or other

enterprise and that is used in a manner that identifies that business or enterprise and

distinguishes it from the businesses or enterprises of others.”      Keaton & Keaton v.

Keaton, 842 N.E.2d 816, 820 (Ind. 2006) (quoting Restatement (Third) of Unfair

Competition § 12.     We determined in Serenity Springs I that “Visit Michigan City

LaPorte” was not “distinctive”: “We have little difficulty accepting Serenity’s argument

that the designation is primarily geographically descriptive of the goods and services with

which it has been associated. . . . Accordingly, the mark must have acquired secondary

meaning in order to be protectable.” 986 N.E.2d at 324.

       We noted the Bureau presented no evidence that the mark at issue acquired

secondary meaning before Serenity Springs began using it:

       It is undisputed that Serenity purchased the domain name
       visitmichigancitylaporte.com on September 9, 2009 and immediately began
       using it to direct internet traffic to its main website on that date. The
       Bureau also claimed September 9, 2009 as the date of its first use of the
       mark in its application for trademark registration, and trial court found that
       the Bureau first used the mark in commerce on that date. Assuming
       arguendo that the trial court’s finding in this regard is supported by the
       evidence, the Bureau’s and Serenity’s first uses of the mark were virtually
       simultaneous. Secondary meaning is acquired through actual use of a
       mark, and there is simply no evidence in the record supporting a conclusion
       that the mark became associated with the Bureau in the minds of consumers
       on September 9, 2009 in the hours prior to Serenity’s registration of the
       domain name.


                                             6
Id. at 326.

       We decline to revisit our holding “Visit Michigan City LaPorte” is not protectable,

as the question whether the phrase is “distinctive” was expressly adjudicated in Serenity

Springs I. See, e.g., Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 704 (Ind. Ct.

App. 2005) (former adjudication is conclusive as to issues actually litigated and

determined therein in a subsequent action even if the two actions are on different claims),

trans. denied.   As there was no protectable trade name, the trial court erred in

determining there was a “tort in the nature of trade name infringement.” (App. at 6.)

       2.     Unfair Competition

       The trial court found Serenity Springs had committed six more torts it explicitly

characterized as variants of unfair competition: a common-law tort based on Serenity

Springs’ intent to deceive, common-law acts amounting to cybersquatting, unfair

competition in the form of conversion of intangible value, tortious interference with a

contract or business relationship, tortious behavior in the nature of “palming off,” and a

“general unnamed tort of unfair competition.” (Id. at 32.) As the phrase “Visit Michigan

City LaPorte,” had not become identified with the Bureau before Serenity Springs began

using it, it was error for the trial court to find Serenity Springs’ use of the phrase was

unfair competition.

       In Serenity Springs I, we said this in addressing the Bureau’s trademark

infringement claims:

       This court has long held that the exclusive right to use a mark is acquired
       through adoption and use of the mark in commerce. See Johnson v.
                                            7
      Glassley, 118 Ind. App. 704, 83 N.E.2d 488 (1949) (“[t]he mere adoption
      of a particular name as a trade name, without actual use thereof in the
      market, confers no right thereto, even though such adoption is publicly
      declared”); Hartzler v. Goshen Churn Ladder Co., 55 Ind. App. 455, 104
      N.E. 34 (1914).

986 N.E.2d at 340 (emphasis added.)

      Hartzler was an unfair competition action.        Goshen Churn Ladder Company

manufactured and sold a stepladder under the name “Security Ladder.”              It alleged

Hartzler

      conspired to create a corporation which should have a pretended color of
      right to use the name ‘Security Ladder’ for the purpose of deceiving the
      public into the belief that they were the original makers . . . of such ladders,
      and thus create, by means of the deception, an unfair and tricky competition
      in trade with [Goshen].

104 N.E. at 36.

      There we noted:

      The question to be determined in every case is whether or not, as a matter
      of fact, the name or mark used by defendant has previously come to
      indicate and designate plaintiff’s goods, or, to state it another way, whether
      defendant, as a matter of fact, is by his conduct passing off his goods as
      plaintiff’s goods, or his business as plaintiff’s business.
                                          *****
      Even descriptive and generic names may not be used in such a manner as to
      pass off the goods or business of one man as and for that of another. Where
      such words or names by long use have become identified in the minds of the
      public with the goods or business of a particular trader, it is unfair
      competition for a subsequent trader to use them in connection with similar
      goods or business in such a manner as to deceive the public and pass off his
      goods or business for that of his rival.

104 N.E. at 38 (quoting 38 Cyc. 799-800) (emphasis added). As Serenity Springs bought

and began using the domain name immediately after the Bureau announced it in a public


                                             8
meeting, the name could not have “previously come to indicate and designate [the

Bureau’s] goods,” nor could it have, by “long use,” become identified in the minds of the

public with the Bureau.

        We acknowledge authority from other jurisdictions suggests a “single use” or an

“initial use” is sufficient, e.g., Blue Bell, Inc. v. Farah Mfg. Co., Inc., 508 F.2d 1260,

1265 (5th Cir. 1975) (use of trademark need not have gained wide public recognition and

even a single use in trade may sustain trademark rights if followed by continuous

commercial utilization). But even that standard is not met in the case before us; we have

only the Bureau’s statement of its intention to commence using that phrase.3 Serenity

Springs’ actions therefore did not amount to unfair competition, and it was error for the

trial court to so hold.

        As “Visit Michigan City LaPorte,” was not a protectable trade name and Serenity

Springs’ use of it was not unfair competition, we reverse.

        Reversed.

VAIDIK, C. J., concurs.

RILEY, J., concurs in part and dissents in part.




3
  The dissent would find the Bureau “established a bona fide initial use of ‘Visit Michigan City LaPorte’”
by “allocating funds to contract with a marketing firm and announcing the results in a televised meeting.”
(Slip op. at 15.) We decline to hold paying for a study and announcing its results amounts to even a
single or initial “use in trade.”
                                                     9
                              IN THE
                    COURT OF APPEALS OF INDIANA

SERENITY SPRINGS, et al.,                           )
                                                    )
       Appellants-Defendants,                       )
                                                    )
              vs.                                   )     No. 46A04-1309-MI-470
                                                    )
THE LAPORTE COUNTY CONVENTION                       )
AND VISITORS BUREAU,                                )
                                                    )
       Appellee-Plaintiff.                          )


RILEY, Judge, concurring in part and dissenting in part


       Although I agree with the majority’s rather sparse analysis that ‘Visit Michigan

City LaPorte’ is not a protectable trade name and therefore no trade name infringement

can exist, I respectfully dissent from its treatment of the Bureau’s common law unfair

competition claim.

       Unfair competition is generally defined as “the attempt to create confusion

concerning the source of the unfair competitor’s goods.” Rader v. Derby, 89 N.E.2d 724

(Ind. Ct. App. 1950). A claim for unfair competition can be instituted by a party who has

acquired a trade name right designation against a party who subsequently used an

identical or similar phrase. See Hartzler v. Goshen Churn Ladder Co., 104 N.E.2d 34, 37

(Ind. 1914). But only a person who has applied a designation as a trademark first has

priority in the use of the designation over another user. See Restatement (Third) § 19. In


                                               10
the case at bar, both the Bureau and Serenity claim priority usage rights in ‘Visit

Michigan City LaPorte.’

       In its discussion of the Bureau’s claim based on unfair competition, the majority

solely focuses on Hartzler, to reject a finding of unfair competition in Serenity’s conduct

of buying and using the domain name immediately after the Bureau announced it during a

public meeting. See Slip. Op. pp. 8-9.

       Hartzler, one of the first Indiana cases dealing with trademarks and trade names,

was issued prior to the enactment of the federal and state trademark statutes. In this case,

Goshen Churn & Ladder Co. (Goshen) brought an unfair competition claim against

Hartzler, asserting that the name of Hartzler’s corporation was “wrongfully and

unlawfully selected in the imitation of [Goshen’s] trade name ‘Security Ladder’ for the

fraudulent purpose of deceiving the public and appropriating [Goshen’s] good will and

reputation.”   Id. at 36.    Relying on “the general principles of the law of unfair

competition as deduced from cases in other jurisdictions, and collected in textbooks,” the

Hartzler court noted, as alluded to by the majority, the general rule that

       A dealer coming into a field already occupied by a rival of established
       reputation must do nothing which will unnecessarily create or increase
       confusion between his goods or business and the good or business of his
       rival.
...
       Even descriptive and generic names may not be used in such a manner as to
       pass off the goods or business of one man as and for that of another. Where
       such words or names by long use have become identified in the minds of the
       public with the goods or business of a particular trader, it is unfair
       competition for a subsequent trader to use them in connection with similar
                                             11
       goods or business in such a manner as to deceive the public and pass off his
       goods or business for that of his rival.


Id. at 38 (emphasis added).      Ultimately, Hartzler concludes its recitation of these

principles by declaring “[t]he question in every case is whether the defendant is in fact

attempting to sell his goods as the goods of someone else.” Also, “[u]nfair competition is

always a question of fact. The question to be determined in every case is whether or not,

as a matter of fact, the name or mark used by defendant has previously come to indicate

and designate plaintiff’s goods, or, to state it another way, whether defendant, as a matter

of fact, is by his conduct passing off his goods as plaintiff’s foods, or his business as

plaintiff’s business.” Id.

       To this day, Hartzler, decided in 1914, is still good law. However, Hartzler dealt

with advertisements and circulars. In the case at bar, we are called upon to evaluate

domain names and internet registrations. In other words, Hartzler’s principles and “long

use requirement” were enunciated in a time when men drove a cart and horse and life

proceeded more slowly but they are difficult to apply to an era where messages can be

sent at the speed of light and goods can be purchased by the push of a button. Although it

is “frequently feasible to pour new wine into old legal bottles,” here, the old rule—albeit

still valid—simply cannot keep up with the modern advances in technology. See Felsher

v. University of Evansville, 755 N.E.2d 589, 599 (Ind. 2001).

       Despite my state- and nationwide research, no single similar case exists—even

Indiana case law in general is extremely sparse with respect to trademarks, let alone trade
                                            12
names. Although factually some cases might come close, no court before us has dealt

with the almost simultaneous registrations of domain names in the context of common

law unfair competition.

        In an effort to keep up with the modern advances in technology, 4 the Restatements

and some out-of-state case law seem to move away from the rigid requirement to

establish a “long use” in order to acquire priority of use in exchange for “[t]he bona fide

nature of the use rather than its extent or frequency is determinative.” See Restatement

(Third) § 18. Therefore, the “initial use of a designation can be sufficient to constitute

bona fide commercial use if the circumstances indicate an intention to continue the use in

the ordinary course of business.” See Restatement (Third) § 18; See also La Societe

Anonyme des Parfums le Galion v. Jean Patou, Inc., 495 F.2d 1265 (2d Cir. 1974) (The

user who first appropriates the mark obtains an enforceable right to exclude others from

using it, as long as the initial appropriation and use are accompanied by an intention to

continue exploiting the mark commercially.); Blue Bell, Inc. v. Farah Mfg.Co., 508 F.2d

1260, 1265 (5th Cir. 1975) (Even a single use in trade may sustain trademark rights if

followed by continuous commercial utilization.).

        Within the context of trademarks, the Restatement (Third) § 18 notes as follows:




4
  Similar efforts have been made in the area of trademark law. Until 1988, the federal trademark statute
made “actual use” a prerequisite to protection. However, the 1988 amendments to the Lanham Act
recognized the acquisition of rights prior to the actual use if the person “has a bona fide intention [] to use
a trademark in commerce.” (Restatement (Third) §18). See, e.g., 15 U.S.C.A. § 1057(c) which provides
that the filing of an application for registration constitutes “constructive use” of the mark.
                                                       13
       In the case of goods, trademark claims based on a use of the mark in
       advertising are typically raised in an attempt to establish rights prior to the
       initiation of actual sales. The use of a designation in pre-sales solicitations,
       presentations, or other advertising can result in the creation of good will
       symbolized by the designation even before any actual sales. The case law,
       although not always denominating the user’s interest in a trademark,
       frequently recognizes in such circumstances the user’s right to protection
       against unfair competition resulting from a use of the designation by
       another. [] Such pre-sales activity can qualify as a trademark use if the use
       is calculated to produce the required association between the mark and the
       user’s goods and is done in the user’s ordinary course of business.


In light of this emerging move away from the rigid adherence to a “long established use”

of the trademark or trade name, I would consider the Bureau’s bona fide use of the

domain name during the ordinary course of its business.

       Although acknowledging this new trend in the case law, the majority rather

nonchalantly declared in its opinion that “even that standard [of single use] is not met in

the case before us; we have only the Bureau’s statement of its intention to commence

using that phrase.” Slip op. p. 9. Rather than relying on the heavily sanitized version of

the facts used by the majority but instead considering the actual record before me, I find

that the evidence reflect otherwise. The Bureau presented that it contracted with a private

marketing firm in early 2009 to conduct a branding study for the purposes of identifying

new and better ways to promote tourism in the area. On the morning of September 9,

2009, the Bureau held a televised public meeting, pursuant to its compliance with the

Open Door provisions, during which it announced the results of its branding study and

introduced the public to ‘Visit Michigan City LaPorte’ as its unique identifier. Jack

                                             14
Arnett, the Bureau’s director, testified that a marketing campaign of the phrase would

begin immediately after the public meeting by securing the domain name, changing letter

head and visitors guides, and employ the services of the local radio stations and

newsletters. In fact, the record reveals that business cards and visitor guides had already

been prepared with the new designation in anticipation of the Bureau securing the rights

to ‘Visit Michigan City LaPorte.’ It is furthermore undisputed that Serenity purchased

the domain name ‘visitmichigancitylaporte.com’ immediately upon the Bureau’s

unveiling on September 9, 2009 and instantaneously began using it to direct internet

traffic to its main website.

       By following internal protocol in allocating funds to contract with a marketing

firm and announcing the results in a televised meeting in compliance with the Open Door

provisions, the Bureau established a bona fide initial use of ‘Visit Michigan City LaPorte’

during its ordinary course of business calculated to project to prospective tourists “the

significance of the designation as an identifying symbol.” Restatement (Third) § 18. A

subsequently planned marketing campaign sufficiently marked the beginning of

commercial exploitation of the identifying phrase. See Restatement (Third) § 18 (use of a

designation in the various advertising media can now establish the designation’s

significance as an identifying symbol as surely as its appearance on packaging or labels).

Only after the unveiling of the designation, but still during the on-going meeting, did

Serenity purchase the rights of the corresponding domain name. Use of a designation

merely to frustrate the marketing plans of another seller who is preparing to use a similar

                                            15
mark is not a bona fide use in the ordinary course of business. Restatement (Third) § 18.

For these reasons, I conclude that priority of use in ‘Visit Michigan City LaPorte’ lies

with the Bureau.

          Moreover,

          [i]n order to make out a case of unfair competition, it is not necessary to
          show that any person has been actually deceived by the defendant’s conduct
          and led to purchase his goods in the belief that they are the goods of
          plaintiff, or to deal with defendant thinking that he was dealing with the
          plaintiff. It is sufficient to show that such deception will be the natural and
          probable result of defendant’s acts. But either actual or probable confusion
          must be shown, for if there is not probability of deception, there is no unfair
          competition.

Hartzler, 104 N.E. at 37-38 (emphasis added). While the parties did not present any

evidence that visitors attempting to access the Bureau’s website were actually deceived

into visiting Serenity’s website and purchasing a vacation package, Serenity’s availment

of this particular domain name nevertheless poses the risk of a “probability of confusion.”

See id.

          By registering the domain name ‘visitmichigancitylaporte.com’ and linking it to

its website, Serenity ensured that Web surfers searching for information about the diverse

attractions and accommodations located in La Porte County and promoted by the Bureau

were diverted to Serenity’s own Web page instead.                Laura Ostergren, Serenity’s

proprietor, testified that the company developed a three-day guest package stay which

was linked directly to the domain name and “which encouraged people [] to do [things] in

the area.” (Appellant’s App. p. 55). The page also included a link to the Bureau’s

website as well as to Harbor Country, the neighboring county.
                                                16
       Based on the timing and circumstances of the acquisition of the domain name by

Serenity, a reasonable inference can be made that Serenity’s strategy was to divert

internet traffic away from the Bureau’s website, which contained links and

recommendations to Serenity’s competitors, by having potential vacationers view

Serenity’s accommodations first. To make the confusion even more outspoken, Serenity

included links on its website to the natural attractions of the area and neighboring county,

much like the ones found on the Bureau’s website. Thus, instead of comparing and

contrasting all available accommodations in La Porte County, Serenity’s web site

deceived the potential vacationer into purchasing its vacation from Serenity.            By

appropriating the Bureau’s trade name and linking it to its own website, Serenity created

this probable confusion and deception and consequently committed unfair competition

with the Bureau. I would affirm the trial court’s finding of unfair competition in favor of

the Bureau.

       In light of Indiana’s sparse and outdated case law, I would urge our Legislature

and supreme court, if the opportunity arises, to look beyond the man and cart method

promoted by Hartzler and approved by an out-of-touch majority, and instead usher

Indiana into the technological realities of the 21st Century by formulating tools

appropriate to handle the complexities of the internet’s realm.




                                            17
