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Trademark Keyword Issue Far From Settled

Kentucky court to weigh in eventually

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We can only expect this issue to be brought before the courts more and more, which might mean it is eventually decided by much higher courts: Does targeting your competitor’s trademark keyword in search ads constitute "use in commerce," and thus a trademark violation.

The issue has come up time and time again from some high-profile companies in various states and in various courts. Most of the time, the courts have answered with bidding on a competitor’s keyword does not violate trademark laws and is not considered "use in commerce." But a few other times, the courts have decided differently.  

The latest comes from a Kentucky court, reports Technology and Marketing Law Blog writer/law professor Eric Goldman, where though it’s not a final ruling, the motion by the court suggests they will at least consider it.

There are other elements to the feud between a golf-course-drainage company and a former employee who left to start his own company, but in this instance, the court listened to two sets of precedents regarding keywords as use in commerce when deciding on whether to grant the defendant’s motion to dismiss.

The court chose not to dismiss the trademark violation claim due to "the uncertain state of the law" and that the plaintiffs had presented a good enough case “state a claim to relief that is plausible on its face."

Goldman called the ruling "a thinly reasoned opinion with meager facts," but whatever the outcome, it will add to the growing number of cases addressing the issue without real resolution for the greater body of search marketers.
 

Trademark Keyword Issue Far From Settled
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    I think that as long as you are not copying a sites image or content, that putting a work in your title tag or on your site to reference another business is not all that bad.

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    I can only see more and more issues within our future for laws that involve the online realm.

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    I would say imho that this is copyright infringement. The problem with the Internet is that it is not governed by any set of real rules, and it is very easy for anyone to advertise using your copyright, get searches, then simply affiliate and sell your stuff, in the case where you have an affiliate program, without you knowing it.

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    I would certainly say that this falls under the category of copyright infringement since the business had to develop the unique name and services from scratch.

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    I think its copyright infringement because you are utilizing a copyrighted name to leverage sales for your company. However, it seems as though it would be very difficult to find a solution for this as it is extremely complex.