• 30
  • November
    2011

There are few things that permeate into our lives as much as the internet. Everyday millions of people not only use email and Facebook, but also utilize search engines. Unfortunately though, search engines and other forms of internet media have created new intellectual property legal issues - especially issues involving trademarks, which can often lead to lawsuits.

Purchasing Keywords

After an internet user types in a search request, search engines generally display results in order of relevance using complicated algorithms. However, often times search results are not only based on relevance - for example, many search engines will also allow other websites to bid on particular keywords. Thus when a specific keyword is purchased and entered into the search engine, the website of that keyword purchaser will be listed as a sponsored link. Unfortunately, when a website owner purchases a competitor's trademark as a keyword, disputes inevitably arise regarding trademark infringement.

Likelihood of Confusion

In order to prevail in a trademark infringement suit, the plaintiff must not only show that they own the mark, but also that the defendant's use of the mark in commerce creates a likelihood of confusion among consumers.

In most cases brought against search engines involving keywords the court never addresses the issue regarding likelihood of confusion - but in one case that did, J.G. Wentworth v. Settlement Funding, a Philadelphia federal court determined there could be no likelihood of confusion because "[e]ven accepting plaintiff's allegations as true - i.e., assuming that defendant did in fact use plaintiff's marks through Google's AdWords program or in the keyword meta tags for its Web site - as a matter of law defendants actions do not result in any actionable likelihood of confusion under the Lanham Act."

This area of the law in incredibly complex, and there has yet to be created an established test. However, it is believed that much of the analysis may have to do how clearly the link to a sponsored site is labeled following a search - if the sponsored link is obviously for a competitor of the trademark owner, it is less likely that likelihood of confusion will be found. After all, if an internet user types "Brand-X" into a search engine simply looking for a type of product, and gets some results for a clearly marked "Brand-Y" website, the argument that the user believes Brand-X and Brand-Y are the same is less persuasive.