The Search Engine Advertising Market: Lucrative Space or Trademark Liability?

Texas Intellectual Property Law Journal, Vol. 17, p. 223, Fall 2008

45 Pages Posted: 9 Nov 2010  

Jonathan J. Darrow

Harvard Medical School

Gerald Ferrera

affiliation not provided to SSRN

Date Written: 2008

Abstract

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.

Suggested Citation

Darrow, Jonathan J. and Ferrera, Gerald, The Search Engine Advertising Market: Lucrative Space or Trademark Liability? (2008). Texas Intellectual Property Law Journal, Vol. 17, p. 223, Fall 2008. Available at SSRN: https://ssrn.com/abstract=1705493

Jonathan J. Darrow (Contact Author)

Harvard Medical School ( email )

250 Longwood Avenue
Boston, MA 02115
United States

Gerald Ferrera

affiliation not provided to SSRN ( email )

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