Keyword Advertising Survives Trademark Challenge
Over the past few years, federal courts have been wrestling with how to handle “keyword advertising.” It’s a concept that is kind of unique to search engines. Here’s an unpublished opinion from the 5th Circuit that’s the most recent ruling on the subject. Very simply, “keyword advertising” is a program that allows Addidas, for example, to purchase the term “Nike” from Google or Yahoo. So anytime someone searches for Nike, a sponsored link for Addidas will automatically pop up on the results list. Now, a company like Nike might not like this. And it sounds a little like a competitor using another company’s trademark to drive customers its way. Which sounds a little like a trademark claim. But not all courts agree. Some have decided that keyword advertising is not a “use in commerce” because it is essentially an invisible use. That’s rapidly becoming the minority view however. But a lot of courts have held that the use is not “confusing.” That is, the average consumer would realize that the sponsored link for Addidas has nothing to do with Nike. And that’s the take the position that the 5th Circuit essentially adopts. Even though the lower court held that the keyword program was not a use in commerce. Note to Elena Kagan. You might want to study up on this issue. It’s likely to find it’s way to the Supreme Court.