Trademarks as Search Engine Keywords: Who, What, When?

34 Pages Posted: 13 Jul 2014

See all articles by David A. Hyman

David A. Hyman

Georgetown University Law Center

David J. Franklyn

Golden Gate University - School of Law

Date Written: July 11, 2014

Abstract

Most Internet searches result in unpaid (organic or algorithmic) results, and paid ads. The specific ads that are displayed are dictated by the user’s search terms (“keywords”). In 2004, Google began offering trademarks for use as keywords on an unrestricted basis, followed in due course by other search engines. Once that happened, any entity (including sellers of competing products) could have their ads appear in response to a search for the trademarked product. Trademark owners responded by filing more than 100 lawsuits in the United States and Europe, making the dispute the hottest controversy in the history of trademark law. Litigation has focused on purchases by competitors — giving the impression that competitors account for a large portion of such purchases. We find that competitors account for a relatively small percentage of keyword purchases, and many trademark owners purchase their own marks as keywords. We also find a high degree of fluctuation in the number of paid ads and the domain names to which those ads are linked. We conclude that the risk of widespread abuse is low. Trademark owners’ objections seem to have more to do with objections to free riding than with the zone of interests currently protected by U.S. trademark law.

Keywords: trademarks, keywords, likelihood of confusion, trademark infringement

JEL Classification: D23, K11, O34

Suggested Citation

Hyman, David A. and Franklyn, David J., Trademarks as Search Engine Keywords: Who, What, When? (July 11, 2014). Texas Law Review, Vol. 92, 2014; Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-22; Univ. of San Francisco Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2426888

David A. Hyman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

David J. Franklyn

Golden Gate University - School of Law ( email )

536 Mission Street
San Francisco, CA 94105
United States

HOME PAGE: https://www.ggu.edu/shared-content/faculty/bio/david-franklyn

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