Online Infringement (Keyword advertising) - US
The US courts are split over the issue of keyword advertising which allowed internet advertisers to use other businesses’ trademarks to attract customers to their websites. Trademark owners complain that this constitutes infringement as it allows competitors to place advertisements in response to a search for specific trademarks. The competitors contend this a fair non-trademark use that will promote comparative advertising. Under the Lanham Trademark Act prohibits use of another’s trademark in commerce. When Internet Law was in its infancy, the initial interest confusion doctrine prevented an infringer or cybersquatter from registering or maintaining a domain name that was identical or similar to another’s trade name, on the basis that, for example, internet users who typed in www.TradeName.com would be led to the cybersquatter’s website. However, in order to prevent such conflict and protect the trademark, a new trademark called electronic registration mark has been created under the Internet Law. It is established that the use of an electronic registration mark to cause the delivery of display of an advertisement for a business, goods, or a service, will constitute trademark infringement if the advertisement is likely to cause confusion between the registrants of the mark and the advertiser. However, both the constitutionality and the usefulness of this law are questionable. Since under the US Constitution, the regulation or interstate commerce is the responsibility of the federal government, the US states may not unduly burden themselves with interstate commerce. Thus issue of keying must be resolved by the US Congress or by the Federal courts.
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