The Search Engine Advertising Market: Lucrative Space or Trademark Liability?
Jonathan J. Darrow
Harvard Medical School
affiliation not provided to SSRN
Texas Intellectual Property Law Journal, Vol. 17, p. 223, Fall 2008
Internet search engine advertising technology promises to revolutionize the way consumers locate, select and purchase the products and services they seek. This technology facilitates the flow of information and lowers barriers to entry by allowing emerging companies to compete alongside established brands. Yet the clear gains to society afforded by this developing technology are ironically being threatened by the branch of law that incorporates similar efficiency and competition outcomes as its goals: trademark. Much of the literature to date has focused on the narrow issue of whether or not the sale and purchase of keywords is a “use in commerce” so as to implicate the Lanham Act. This article addresses the matter from a broader perspective, arguing that the practical results of keyword sales are consistent with the foundational purposes of the Lanham Act, which include allowing consumers to choose between different producers of a product and lowering consumer search costs. Through the use of analogies to existing trademark uses and a critical review of the case law, we demonstrate that keyword advertising is not only socially desirable but also consistent with judicial precedent and federal statutory goals. We conclude by advocating for the creation of a Lanham Act safe harbor in order to protect this valuable market mechanism which equitably increases competition and broadly benefits both consumers and producers.
Number of Pages in PDF File: 45
Date posted: November 9, 2010