Courts throughout the United States have been at odds regarding the issue of whether or not a party?s purchasing of a trademarked keyword to trigger sponsored links constitutes a trademark use within the meaning of the Lanham Act. In particular, the 2nd Circuit had consistently held that the purchase of a competitor?s trademark to trigger Internet advertising did not constitute a use for the purposes of the Lanham Act.
The 2nd Circuit apparently stood alone in that no cause of action for trademark infringement would be possible in such situations. However, it appears that the 2nd Circuit is now joining the findings of other circuit courts within the United States. In particular, the growing sentiment is that the purchase of trademarked keywords that trigger sponsored links on search result pages, whether it be Google, Yahoo or MSN, or any others, is in fact a use under the Lanham Act.
Another lawsuit considered to be frivolous occurred in 2003 when the TV news station Fox News attempted to sue Al Franken in a case prompted by his book Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. Franken?s book, a satirical parody of what he and others viewed to be the excesses of the right-wing media outlets of the United States, reserved particular ire for Fox News ? a station which uses the term ?fair and balanced? as a network slogan.
The use of the ? symbol does have specific requirements. This traditional trademark signifies ownership of a federal registration. This mark may be used once the trademark or service mark is actually registered with the USPTO on either the Principal or Supplemental Register of the USPTO. It is important to recognize that merely filing an application with the USPTO, withstanding an opposition, or having the mark approved for publication is insufficient to warrant use of the ? symbol. Only upon actually receiving a Certificate of Registration from the USPTO can the owner of that trademark or service mark be permitted to use the ? symbol. In addition, the federal registration symbol should only be used in connection with the goods or services that are listed within the certificate of registration.
Having satisfied this threshold issue, the issue will now become whether a likelihood of confusion, the test to be applied under a trademark infringement analysis, is satisfied. Practically speaking, a motion to dismiss for failure to state a claim will likely fail and timely and costly litigation in order to address all facts pertinent to the likelihood of confusion analysis will be necessary.
Purchasers of keywords should take notice of the current state of the law and be prepared to act accordingly. In addition, trademark owners should be diligent in monitoring their trademarks, identifying unauthorized uses which now appear to include the purchasing of keywords for that trademark, and acting swiftly in order to protect and retain trademark rights.
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