Lowering The Bar: The Unanticipated Consequences of the Trademark Dilution Revision Act for Search Engine Advertising

Abstract

The Trademark Dilution Revision Act poses significant questions regarding how competitors are allowed to use one another's marks as keywords for internet search purposes. The widespread use of trademark by anyone other than the mark holder creates the risk of genericization -- that the mark will lose its most important quality of distinguishing one producer's goods from their competitors'. For example, if someone searches for "Coke" and the first three results are all related to "Pepsi," does this create the possibility that the user will be confused by the results? Will it make it harder for the user to distinguish between the makers of the two different products? Consumer confusion is the principal test for determining whether trademark violations have occurred.

This article compares the risks of genericization presented by the Trademark Dilution Revision Act to how the United Kingdom and France have addressed similar issues with competitors using one another's marks as key words for internet search purposes and suggests minor modifications to help prevent the confusing use of competitor marks.

Keywords: trademark dilution revison act, google, trademark, generic, keyword searches