Confusion is the Key: A Trademark Law Analysis of Keyword Banner Advertising

31 Pages Posted: 7 Dec 2005  

Kurt M. Saunders

California State University, Northridge

Abstract

Keyword banner advertising is a form of targeted online marketing practice whereby a banner ad is displayed on a search engine results page. The banner ad is triggered by the keyword used in the search. Many search engines sell trademarks as keywords as well, allowing competitors to purchase them as keywords for the purpose of displaying their own advertising. Some have argued that this practice should lead to liability for trademark infringement or dilution. Given the realities of online marketing and the underlying policies of trademark law, this is unlikely. Rather, this practice should be regarded as trademark fair use and treated as a form of lawful comparative advertising.

Keywords: trademark, infringement, intellectual property, Internet, cyberlaw, dilution, advertising, electronic commerce, domain name, technology, copyright, comparative advertising, competition

JEL Classification: K10, K11, K19, K20, K22, K29, M30, M37, O30,

Suggested Citation

Saunders, Kurt M., Confusion is the Key: A Trademark Law Analysis of Keyword Banner Advertising. Fordham Law Review, Vol. 71, No. 101, pp. 101-131, 2002. Available at SSRN: https://ssrn.com/abstract=868373

Kurt M. Saunders (Contact Author)

California State University, Northridge ( email )

18111 Nordoff Street
Northridge, CA 91330
United States

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