Making a Mark in the Internet Economy: A Trademark Analysis of Search Engine Advertising
42 Pages Posted: 8 Sep 2010
Date Written: 2005
Keyword search advertising occurs when an advertiser pays a search engine to link a particular keyword to its website. Keywords are often trademarks and some mark owners have objected to the search engines’ practice of selling their marks as keywords without permission. Trademark doctrine requires a “use” of a mark by the alleged infringer to state a claim for infringement, but little precedent exists to determine what is and is not a “use.” This Article examines how courts currently define trademark use and proposes a new definition of use grounded on efforts to trade on consumer goodwill. The proposed definition would identify search engines like Google that sell advertising based on trademarked keywords as potential infringers, but only make them liable for infringement if their uses also confuse consumers. Such a definition would encourage trademark investment, lend some much needed clarity to the law, and avoid the redundancy of other proposed definitions of use.
Keywords: trademark, Use, Infringement, Google, Keyword, Advertising
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