Trademarks, Keywords and Use in Commerce

David Naffziger Aug 12, 2008

Eric Goldman points to a recent ruling that declared purchasing an ad based on a keyword (a practice currently allowed by Google) to be a use in commerce.

Eric also points out that there has been split rulings on whether this constitutes a use in commerce:

The court is right about the majority vote, but it's hardly a strong majority. According to my count [Eric's count], the vote was 7-to-6 before this ruling. However, all 6 no votes are in the 2d Circuit, so geographically there is a stronger basis to characterize the rule as the majority rule..

We've been of the opinion that Google's position regarding keyword usage was relatively secure. However, if court decisions continue to rule this way, that position may erode over time.

Topics: paid search, Trademark and Law, Search Engine Updates

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