Keyword Advertising Doctrine – US
Keyword advertising refers to the practice of prompting the company’s advertising with search results when Internet search engine users enter a specific keyword as a search term. However, it is yet to be clarified whether the purchase of a trademark keyword constitutes actionable use.
Interest confusion:- In the online world this type of confusion arises when the unauthorized use of a trademark through use of marks in domain names diverts internet traffic to a competitor’s website. However, applicability of this doctrine is limited since application of interest confusion at the initial stage requires a showing of international deception. Therefore, it is explained in the Intellectual Property Law of US that consumers who are diverted and initially confused on the Internet can easily correct their initial confusion by leaving the website they have reached in error.
Permissible uses:- Some courts have addressed whether the defendant’s use of the plaintiff’s trademark as a keyword constitutes a permissible fair or nominative use. In many trademark uses, a defendant will assert that its use of the plaintiff’s mark is fair irrespective of some confusion. Such use of the mark is recognized in the Lanham Act as classic fair use.. Another type of fair use refers to as nominative fair use according to which a defendant uses the plaintiff’s mark for the purpose of referring to the plaintiff. This reflects the true and accurate relationship between the parties.
Trademark use:- In some cases, question arises whether keying an advertisement to a trademark constitutes trademark use? The District Courts in the Second Circuit have concluded that keying an advertisement does not amount to trademark use, and that use can be found only if the trademark term appears in the text of the advertisement.
However, the US courts have yet to come to a conclusion about the legality of practices such as keyword advertising in the US.
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