Lex 8256: The Law in Cyberspace Seminar

Keyword advertising (Susan)

Keyword advertising refers to advertising that is linked or “keyed” to specific search terms by Internet search engines. Google AdWords is probably the most well-known form of keyword advertising. Google displays search ads specifically targeted to the word(s) typed into a search box. The search terms may include trademarked words and phrases. For example, a shampoo company may pay an Internet search engine to provide a link to its website when users search using generic hair cleaning terms. This does not cause potential trademark infringement issues. However, if that same company pays the Internet search engine to provide a link to its website when users search using a trademarked keyword (which it does not own rights to), then it becomes an issue of whether or not such an action is infringement under the Lanham Act.

Test it out – type a brand name product into a search engine and see if other product links are displayed as results.

Retailers and Trademark Law:

Eric Goldman, Brand Spillovers, 22 Harv. J. L. & Tech 381 (2009)

Use in Commerce?

Rescuecom Corp. v. Google, Inc. 562 F.3d 123 (2d Cir. 2009)

Trademark Owner Sues Keyword Advertiser (as opposed to suing keyword sellers like search engines):

Network Automation, Inc. v. Advanced Systems Concepts, Inc. 2011 WL 815806 (9th Cir. Mar. 8, 2011)
Paul Alan Levy, Ninth Circuit Decision Protects Keyword Advertising Against Trademark Claim (Mar. 9, 2011)

If you are interested, click the link below for a thorough analysis of the Network Automation decision, in addition to several recent district court rulings on the same issue:

Eric Goldman, Important Ninth Circuit Ruling on Keyword Advertising, Plus Recaps of the Past 4 Months of Keyword Ad Decisions (Mar. 9, 2011)

Keyword Advertising Policies: