Keyword Advertising. book Chapter 11. the. Mark R. Privratsky Christopher R. Sullivan Lindquist & Vennum P.L.L.P.

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1 the IP book Chapter 11 Keyword Advertising Mark R. Privratsky Christopher R. Sullivan Lindquist & Vennum P.L.L.P. Cases involving the purchase of keywords from Internet search engines such as Yahoo! or Google appear to have moved into a secondary stage. For the most part, courts have consistently held that the purchase of another s trademark as an Internet search term to generate sponsored advertising on web pages constitutes use in commerce for the purposes of sustaining a trademark infringement action under the Lanham Act. Recent cases have focused on delineating which aspects of a keyword advertising program (such as Google s AdWords program) constitute use in commerce. Beyond that, some cases have begun to address the issue of likelihood of confusion arising from the consumer experience of sponsored links generated by keyword advertising. In its most innocent form, Google s AdWords program (and others trying to mimic it) allows Google to sell the use of keywords to increase traffic to websites. Essentially, 161

2 Chapter 11 Keyword Advertising Google auctions the use of trademarks in Google s proprietary search engines to the highest bidder. The concern that arises for trademark owners is that it is their trademarks not Google s that Google is selling. The reason Google has identified the trademarks for sale as keywords is because they have become commonly searched terms and therefore valuable commodities within their respective industries. Moreover, the market for such terms is often the trademark owners direct competitors in their industries, thus leaving trademark owners wondering whether Google and their competitors are marketing their wares and services at the expense of the trademark owners. Google s program has been described as allowing competitors to post their digital fliers where they might be most readily received in the cyber-marketplace. Unfortunately, if those fliers are stapled to another entity s trademark, the fliers may amount to little more than litter swirling about that trademark owner s digital world. I. RESCUECOM In what is arguably the most important keyword advertising case of the past several years, Rescuecom and Google are blazing the trail, leaving the rest of the world to catch up and apply a more traditional application of trademark law to the medium. In Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009), the Second Circuit reversed the district court s dismissal of Rescuecom s complaint against Google for trademark infringement, false designation of origin, and dilution. Specifically, Rescuecom alleged that through its Keyword Suggestion Tool, Google recommended and sold the use of Rescuecom s trademarks to its competitors. This practice, according to Rescuecom, allowed its competitor s to deceive and divert users searching for Rescuecom s website. 562 F.3d at 127. The district court, applying the Second Circuit s earlier precedent in 1-800Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005), dismissed Rescuecom s complaint for failing to allege that Google s use of its trademarks was use in commerce under the Lanham Act Contacts involved a computer program for generating pop-up ads when a user searched for or visited a particular website. By its nature, the pop-up ad would appear in a separate window on a user s computer, and the brand identity was displayed in the window s title bar. The Second Circuit concluded that there was no confusion as to the 162

3 The IP Book 2010 nature of the pop-up ad as an advertisement or the origin of the ad in response to the user s activity. In Rescuecom s case, however, the Second Circuit laid out several key differences between the WhenU.com program and Google s keyword advertising program, including the keyword suggestion tool. First, the court noted that the trigger for the pop-up ads was not the trademark itself but the website s domain name, which was not a trademark. Second, WhenU.com was not engaged in the sale of particular keywords as triggers for specific pop-up ads. Instead, WhenU. com employed a proprietary directory that used categories associated with particular websites to generate the pop-up ads rather than the website or the keyword itself. Thus, in its earlier case the Second Circuit had concluded that the program at issue made no use whatsoever of the plaintiff s trademarks. Google, by contrast, recommended and sold the use of competitor s trademarks as keywords, and by doing so, it used the marks in commerce. For its part, Google contended that the inclusion of trademarks within a computer directory did not constitute trademark use. The Second Circuit rejected this argument and noted that, while WhenU.com s use was internal to its directory, Google s recommendation and sale of Rescuecom s mark as a keyword were not internal. The Court went on to clarify that its holding in 1-800Contacts was not meant to imply that use of a trademark in an internal computer program was not actionable as trademark infringement as a matter of law. Use of a trademark as a keyword is not internal to a computer directory. On March 5, 2010, almost a year after the Second Circuit gave Rescuecom its case back, Rescuecom declared victory over Google. In a press release from its CEO, Rescuecom claimed it had achieved two of the three things it sought via the suit against Google. It proved Google s keyword use of others trademarks fit literally within the terms of the Lanham Act, and it forced Google to remove Rescuecom s trademark from its keyword suggestion tool. With respect to its third objective, however, Rescuecom has essentially done a one-eighty, and today finds itself making the same arguments Google asserts in defense of similar trademark infringement allegations i.e. use of trademarks as keywords to trigger sponsored links are not likely to confuse consumers. On October 14, 2009, Rescuecom filed suit against BBY Solutions, Inc., d/b/a Best Buy, seeking a declaration that its use of the keyword phrase geek squad to display a sponsored link containing the text Choose Rescuecom instead of geeks did not infringe Best Buy s mark. Rescuecom Corp. v. BBY The Fair Use Doctrine may protect keyword advertising that is comparative. 163

4 Chapter 11 Keyword Advertising Solutions d/b/a Best Buy, Civ. 5:09-cv-1149 (FJS/DEP) (N.D.N.Y. Oct. 14, 2009). Rescuecom alleged that its use of Best Buy s mark clearly indicated Rescuecom is a separate entity distinct from Geek Squad because it referred to it as an alternative vendor for resolving computer problems. Moreover, it claimed that its use of the mark as a keyword to trigger its comparative advertisement is protected under the Fair Use Doctrine. According to Rescuecom, its use of Geek Squad as a keyword does not give rise to a likelihood of confusion, and therefore, does not constitute trademark infringement or dilution. In response, Best Buy counterclaimed against Rescuecom in December 2009 for trademark infringement, inter alia, and also into the suit as a party Rescuecom s CEO, David Milman, accusing him of having personal named liability for Rescuecom s infringing actions. The case will likely be scheduled for trial sometime in early II. OTHER TRADEMARK OWNERS VERSUS GOOGLE Rosetta Stone Ltd. v. Google Inc. Google recently scored an important victory in its ongoing battle against trademark holders objecting to the sale of their marks as keyword triggers for paid advertising. The opinion in Rosetta Stone Ltd. v. Google, Inc., 2010 WL , (E.D. Va. Aug. 3, 2010), is a detailed and wide-ranging discussion of many key theories of liability for Google s AdWords Program of sponsored links that have been advanced by trademark holders. Of the seven counts alleged against Google, the court granted summary judgment on six and granted Google s motion to dismiss on the seventh. First and foremost, Rosetta Stone alleged that sale of its marks through Google s AdWords Program was direct trademark infringement of the Rosetta Stone marks. This issue came down to whether the sale of the Rosetta Stone trademarks within the sponsored links on a Google search-results page was likely to create consumer confusion as to the source or origin of Rosetta Stone s goods or services. The court rejected Rosetta Stone s claim that Google s trade in keywords demonstrated its intent to confuse consumers. Google s profit motive was not sufficient to establish any intent to confuse consumers. Nor, the court reckoned, was it in Google s business interests to do so. Similarly, the court rejected Rosetta Stone s evidence of actual confusion. The evidence consisted of five individuals who claimed to be confused by some aspect of the keyword ads and sponsored links. The court s analysis, however, concluded 164

5 The IP Book 2010 that all five individuals were not actually confused by the sponsored links, but by the confusing nature of the websites from which they purchased. Also, the court found that the evidence of only five individuals was de minimus given the number of more than 100,000 advertising impressions. Finally, the court rejected Rosetta Stone s expert survey, which addressed the issue of whether Google endorsed a particular sponsored link, which was not at issue. Taken together, along with the relative sophistication of Rosetta Stone s customers, the court concluded that Google s use of the Rosetta Stone marks was not direct trademark infringement. The court also concluded that the keywords performed indexing, and as such did not infringe because of the doctrine of functionality. For the issue of contributory trademark infringement based on Rosetta Stone s assertion that Google intentionally induced or knowingly permitted counterfeiters to use the Rosetta Stone marks in their sponsored ads, the court also found for Google. First, it concluded that Rosetta Stone s evidence of Google s economic incentive was commonplace and insufficient to demonstrate inducement. Likewise, the court concluded that Rosetta Stone had not submitted any evidence that Google was supplying a service to those it knew or had reason to know were engaging in trademark infringement. In a similar vein, the court made short work of Rosetta Stone s claim of vicarious trademark infringement by concluding that Google has no control over third party advertisers sponsored links or their use of the Rosetta Stone marks in the text of the keyword-triggered ad. Finally, Rosetta Stone brought a claim under the recently enacted Trademark Dilution Revision Act, claiming that Google s AdWord Program caused trademark dilution of Rosetta Stone s marks. The court found that the Rosetta Stone marks were famous, but found that because Google did not use the marks to identify its own goods or services, Google could not be liable for trademark dilution. Moreover, the court found that because Rosetta Stone s brand awareness had increased over the relevant period, Google s AdWord Program was not likely to cause dilution by blurring. Similarly, no dilution by tarnishment was present because Rosetta Stone s reputation had not been impaired, and it did not show that its marks suffered a loss of distinctiveness or reputation. In a related ruling dismissing the final count, the court concluded that Google s auction of the Rosetta Stone marks did not satisfy the requirements of an unjust enrichment claim. Jurin v. Google Inc. In Jurin v. Google Inc., F. Supp. 2d, 2010 WL (E.D. Cal. Mar. 1, 2010), the plaintiff not only lost its suit against Google, but the court further found the plaintiff s suit to have been frivolous and harassing to the point of ordering the plaintiff to pay Google s costs. Plaintiff Daniel Jurin alleged several violations of state and federal law in relation to Google s use of the trademark 165

6 Chapter 11 Keyword Advertising Styrotrim as a suggested keyword in Google s AdWords program. Styrotrim referred to the plaintiff s building material, which it marketed to those in the construction and remodeling industry. The plaintiff s competitors with Google s assistance used the plaintiff s trademark to cause their own links to appear on users results pages as sponsored links after those users searched for information about Styrotrim. Google identified and offered the mark for sale as a keyword to the plaintiff s competitors because Styrotrim had proven itself to be a commonly searched term in the industry. The plaintiff alleged that Google s sale of the plaintiff s trademark diluted the plaintiff s consumer base because frequently competitors names would appear in a position within the search results higher than the plaintiff s business. The plaintiff claimed Google s facilitation of its competitors actions in this way confused consumers into believing that a competitor s product was preferable to the plaintiff s, amounting to a form of bait and switch advertising, purposefully using Styrotrim to misdirect consumers away from the plaintiff s site. Google sought to dismiss many of the plaintiff s claims for failure to state a claim, including the plaintiff s causes of action for violations of the Lanham Act, negligent and intentional interference with contractual relations and prospective economic advantage, fraud, and unjust enrichment. The court granted Google s motion to dismiss. As to the plaintiff s Lanham Act claims, the court concluded that no allegations of false designation of origin existed because the plaintiff had not accused the defendant of representing that it was the producer of the Styrotrim product. The plaintiff s false advertising claim failed because Jurin and Google were not direct competitors, i.e. although Google did provide advertising support for others in the plaintiff s industry, Google did not directly sell, produce or otherwise compete in the building materials market. With respect to the plaintiff s state law tort claims and fraud and unjust enrichment claims, the court ruled in favor of Google on the grounds that it was protected from suit by the Communications Decency Act, finding that Google s suggestion of keywords amounted to nothing more than the protected editing allowed by an interactive service provider to help third parties refine the content of their webpages. Notwithstanding the court s rulings in favor of Google, the court did not leave Jurin without any recourse. Interestingly, the court gave the plaintiff 20 days to file an amended complaint with respect to all of the dismissed claims. In addition, even though the court was compelled to grant Google s motion for costs because 166

7 The IP Book 2010 the plaintiff had filed but previously dismissed an identical complaint against Google in another district, the court made a point of stating that that motion was being granted reluctantly. The plaintiff timely filed an amended complaint but failed to reimburse Google for its costs for the earlier suit. Accordingly, Google filed another motion to dismiss and the court stayed the matter pending the plaintiff s adherence to its earlier order. Parts Geek, LLC v. U.S. Auto Parts Network, Inc. In Parts Geek, LLC v. U.S. Auto Parts Network, Inc., 2010 WL , Civ. No (MLC) (D.N.J. Apr. 1, 2010), the plaintiff sued both Google and its competitor, USAP. Parts Geek sold auto parts throughout the United States, using the Parts Geek service mark via its website located at USAP sold auto parts from its websites located at and Via Google s AdWords and sponsored links programs, Google sold to USAP use of the words Parts Geek to display sponsored links in the hope of driving traffic to USAP s websites. Among the more traditional claims arising from the Lanham Act and state trademark law, the plaintiff s claims against Google also included one for vicarious trademark infringement and another for violation of New Jersey s RICO statute. Ironically, the plaintiff also had an advertising contract with Google and participated in its AdWords program. Indeed, it asserted that it was forced to purchase the use of its own trademarks from Google to reduce the likelihood that web users would be diverted to the sites of its competitors to whom Google had sold keywords. The AdWords contract entered into by the plaintiff included a choice of law and venue provision selecting California, and Google asserted such in defense of the New Jersey suit. Parts Geek countered that the forum selection clause did not apply because its claims did not arise out of its contractual relationship with Google. The court, however, found that the plaintiff s action against Google and USAP related to Google s AdWords program and thus fell within the scope of the broadly written clause. Because the plaintiff failed to satisfy its burden that the clause should not be enforced, the court transferred the suit to California. Google uses its forum selection clause as both a sword and a shield. Tiffany (NJ) Inc. v. ebay, Inc. Within the context of suits by trademark owners against service providers on the Internet, recently the Second Circuit partially affirmed a judgment in favor of ebay Inc. in Tiffany (NJ) Inc. v. ebay, Inc., 600 F.3d 93 (2d Cir. 2010). Tiffany sued ebay because counterfeit Tiffany jewelry and other merchandise were 167

8 Chapter 11 Keyword Advertising being sold via ebay s auction website. In conjunction with those and legitimate sales, ebay purchased sponsored-link advertisements on various search engines to promote the availability of Tiffany items on its website. Although ebay claimed that it had stopped the practice of purchasing sponsored links after Tiffany complained, ebay had continued the practice indirectly through a third party. On the claim of direct trademark infringement, the Second Circuit Court of Appeals affirmed the district court s ruling that ebay s use of Tiffany s mark on its website and in sponsored links was lawful because ebay used the mark to describe accurately the genuine Tiffany goods offered for sale. The doctrine of nominative fair use allowed ebay to use Tiffany s trademark to identify Tiffany s goods as long as there was no likelihood of confusion about the source of ebay s products or Tiffany s sponsorship or affiliation. Indeed, ebay was not the seller of the products and sold no products of its own, so none of ebay s uses of the mark suggested that Tiffany affiliated itself with ebay or endorsed the sale of its products through ebay s website. With respect to the claim for false advertising, however, the court remanded for further consideration of whether ebay s advertisements, sponsored links and hyperlinks were likely to mislead or confuse customers. In doing so, the court of appeals reminded the district court that ebay must be held accountable for the words that it chose to use on its website insofar as they could mislead or confuse consumers as the counterfeiters were not responsible for ebay s advertisements. III. TRADEMARK OWNERS VERSUS COMPETITORS In what appears to be a strategic move to avoid a fight against well-funded Google, a company with a proven incentive to defend its business model, some trademark owners only sue their competitors. College Network v. Moore Educational Publishers In what is thought to be the first appellate-level review of a case involving alleged infringement by the purchase (as opposed to sale) of keyword advertising, the Fifth Circuit upheld a jury verdict finding no infringement. Plaintiff The College Network (TCN) and Defendant Moore Educational Publishers (MEP) compete in the business of publishing and selling study guides for nursing students. The lawsuit arose in part from MEP s purchase of the keyword phrase The College Network from Google and Yahoo as a trigger for a sponsored link for MEP. TCN s expert witness opined that MEP s use of the keyword phrase created 168

9 The IP Book 2010 a likelihood of confusion for consumers. The jury, however, decided otherwise. The jury concluded that use of the keyword phrase to trigger sponsored links on Google and Yahoo! did not infringe TCN s The College Network mark. On appeal, TCN asked the Fifth Circuit to reverse the jury verdict and find that the purchase of the keyword phrase was trademark infringement as a matter of law. In response to TCN s motion for judgment as a matter of law, MEP argued apparently for the first time that its use of the keyword phrase was not use in commerce under the Lanham Act. The district court agreed that MEP s use of TCN s mark was not use in commerce and thus did not reach the issue of likelihood of confusion. On appeal, however, the Fifth Circuit assumed without deciding that there was use in commerce. The court of appeals instead focused on the likelihood of confusion based on MEP s purchase of the keyword phrase. TCN argued that under the Ninth Circuit s test for Internet advertising cases adopted in Perfumebay.com Inc. v. ebay, Inc., the court should focus on three likelihood-of-confusion factors: similarity of the marks; relatedness of the goods and services; and the parties simultaneous use of the Internet as a marketing channel. Under the Ninth Circuit test, these three factors may create a rebuttable presumption in favor of finding infringement. The court of appeals rejected adoption of the Ninth Circuit test, in part, because TCN failed to raise the issue before the case was sent to the jury and did not object to the jury instructions based on the Fifth Circuit test. Furthermore, the court analyzed likelihood of confusion based on its own test, and concluded there was sufficient evidence to support the jury s finding of no likelihood of confusion. Fair Isaac Corporation v. Experian Information Solutions, et al Closer to home, Minnesota saw one of the first verdicts on a claim of trademark infringement based on keyword advertising, although the fact finder was the court and not a jury. Plaintiff Fair Isaac is the developer of an algorithm that, when applied to a consumer s credit data, calculates a credit score that indicates the consumer s financial creditworthiness and the risk that the consumer will default on future credit obligations. The defendants originally consisted of the three major credit bureaus in the United States Trans Union, Experian and Equifax along with VantageScore, a joint venture created by the credit bureaus to develop a new credit score to compete with Fair Isaac s FICO score. Along with a wide range of antitrust, breach of contract, and false advertising claims, Fair Isaac brought suit against the four defendants for trademark infringement of its alleged 169

10 Chapter 11 Keyword Advertising FICO and marks, in part for the defendants purchase of keywords involving the same. Likelihood of confusion remains a question of fact. On summary judgment, the defendants argued that because none of the sponsored advertisements resulting from the keyword searches included Fair Isaac s alleged trademarks in the text, no infringement occurred. The court rejected this argument, relying on its earlier ruling in Hysitron Inc. v. MTS Systems Corp. that the purchase of keywords containing a trademark to generate sponsored ads from Internet searches constituted use in commerce under the Lanham Act. Moreover, the court looked to the Second Circuit s decision in Rescuecom Corp. v. Google Inc. to conclude that such purchases and the resulting advertisements may be actionable. The court concluded, however, that likelihood of confusion remained a question for the finder of fact and denied summary judgment on the claim. The opportunity to resolve that question of fact came after a jury trial on the merits of other aspects of Fair Isaac s remaining trademark infringement and unfair competition claims. Because Fair Isaac represented to the court that the relief sought for two of the defendants purchases of keyword search terms was limited to an injunction, the court determined that there was no right to a jury trial on the equitable claim. In addition, the court ruling after a jury verdict finding that the mark lacked distinctiveness and therefore was not a valid, protectable trademark made short work of the keyword advertising claim. Without valid trademark rights, the claim of trademark infringement based on the purchase of the keyword failed outright. As for the trademark infringement claim based on Fair Isaac s FICO mark, the court concluded that the weight of the evidence adduced at trial does not support a credible inference that Experian s and Trans Union s purchases of Fair Isaac s trademarks as keyword search terms was likely to confuse consumers. The court explicitly rejected Fair Isaac s expert testimony that the keyword advertising was likely to cause confusion on the grounds that it lacked credibility. Accordingly, the court found in favor of the defendants on the claims of trademark infringement based on the keyword advertising purchases. Skydive Arizona, Inc. v. Quattrocchi In Skydive Arizona, Inc. v. Quattrocchi, 2010 WL , CV (PHX/MHM) (D. Ariz. Apr. 29, 2010), the jury found defendant liable for trademark infringement, false advertising, and cybersquatting for confusing customers into believing that its websites were actually connected with the plaintiff s skydiv- 170

11 The IP Book 2010 ing business. Although the defendant neither owned nor operated skydiving centers in Arizona, it sold certificates redeemable at participating skydiving centers in the state through fictitious websites, including arizonaskydiving.com, skydivingarizona.com, and variations thereon. The plaintiff owned the trademark Skydive Arizona and used it to operate its skydiving business within Arizona. To make matters worse, defendant used pictures of the plaintiff s business on its fake websites and affirmatively misrepresented to customers that its services were associated with the plaintiff s facilities. In post-trial proceedings, the court found that the plaintiff s business reputation and goodwill were irreparably harmed, that the plaintiff s remedies at law were inadequate notwithstanding the jury s $2.5 million damages award, that the plaintiff s harm in correcting the effects of false advertising outweighed the defendant s loss of business resulting from continued infringement, and that the public would be best protected by stopping the confusion from the defendant s websites. It broadly and permanently enjoined the defendant from using plaintiff s trademark and any other confusingly similar marks as part of its business operation. Moreover, it expressly prohibited defendant from using such marks in links or keywords on websites because customers searching for Plaintiff s business should not be erroneously led to Defendant s website due to these marks placement in meta tag[s] or other link[s] on Defendant s websites. Id. at *6. Monetary awards and injunctions are necessary at times. Morningware, Inc. v. Hearthware Home Products, Inc. Plaintiff Morningware, Inc. sued its competitor in counter-top electric stove manufacturing for violations of the Lanham Act and state law claims of unfair competition and commercial disparagement in Morningware, Inc. v. Hearthware Home Products, Inc., 673 F. Supp. 2d 630 (N.D. Ill. 2009). Defendant Hearthware had purchased the use of the plaintiff s trademark as a keyword in conjunction with a search engine advertisement program from Google. The plaintiff claimed that when users searched for it using its trademark, the defendant s advertisement link appeared before the link to the plaintiff and further implied that anything other than the defendant s oven amounted to an inferior imitation. Because Google s trademark policy stated that the advertisers themselves are responsible for the keywords and ad content that they choose to use, the plaintiff did not sue Google but instead claimed that the defendant remained liable for its decision to use the plaintiff s trademark as a keyword in Google s AdWords program. The defendant moved to dismiss for failure to state a claim. 171

12 Chapter 11 Keyword Advertising The majority of courts consider purchasing a trademark as a search term to be used in commerce. The defendant argued that plaintiff could not meet the elements of its false designation of origin claim because its purchase of the keyword morningware was not a use in commerce as required and defined by the Lanham Act. It claimed that it had never placed the mark on any product, good, or service, or used it in any way that would indicate source or origin. Finding that a majority of courts are in favor of holding such conduct constitutes use in commerce, the court concluded that the plaintiff could meet this element. The court embraced another court s recognition that the term use under the Lanham Act has been interpreted broadly in other cases involving the Internet and domain names. Similarly, the court found that the plaintiff had alleged sufficient facts to establish the potential for initial interest confusion on the part of consumers because of the defendant s purchase of keywords for use in search engine sponsored links. Accordingly, the court denied the defendant s motion to dismiss in its entirety and after being consolidated with a patent suit also pending, the case continues. IV. USE OF KEYWORDS FOR OTHER PURPOSES Finally, keywords do not only arise as the basis for a claim for trademark infringement. As counsel and courts become more familiar with the ins and outs of keyword advertising, facts evidencing such conduct are infiltrating other aspects of litigation. For example, there have been a handful of cases over the past few years in which parties have raised defendants uses of keywords in an effort to support a finding of personal jurisdiction. Keywords are being raised in other aspects of litigation. For example, in Invisible Fence, Inc. v. Fido s Fence, Inc., 3:09-cv-25, 2009 WL (E.D. Tenn. Aug. 20, 2009), the registered trademark owner brought an action for a declaration that Invisible, Invisible Fence, and Invisible Fencing trademarks were valid and enforceable, and sought damages from the defendant for trademark infringement, among other things. The defendant dealer had sold and installed pet containment systems for the plaintiff manufacturer. After termination of its dealer agreement, the defendant continued to use the trademarks and marks confusingly similar to them in connection with other products. The defendant sought dismissal of the suit on the grounds that the Eastern District of Tennessee did not enjoy personal jurisdiction over it. One argument offered by the plaintiff to show that personal jurisdiction existed was the defendant s Internet activity via use of sponsored links to its website on Internet search engines. The plaintiff argued that such activity was the Internet equivalent of nationwide advertising, and that as such, the defendant s 172

13 The IP Book 2010 website was not as passive as it represented. The court noted that whether the use of sponsored links constitutes purposeful availment was not clear, citing cases from other districts going both ways on the issue. See Mkt. Am. v. Optihealth Prods., Inc., 2008 WL , 1:07CV00855 (M.D.N.C. Nov. 21, 2008) (site using sponsored links not passive); Boyko v. Robinson, 2007 WL , 4:07- cv-035 (D.N.D. Aug. 17, 2007) (use of sponsored hyperlinks does not confer personal jurisdiction). Because national advertising, in and of itself, was insufficient to support a finding of purposeful availment, and the defendant s website was truly passive, among other things, the court concluded that Fido Fence s use of keyword advertising did not meet the requisite level of interactivity for it to have purposefully availed itself of acting in Tennessee. V. CONCLUSION As the cases indicate, this area of the law continues to evolve as courts analyze the legal issues raised by keyword advertising, and the body of cases have begun to provide some guidance to practitioners. Trademark owners have gained significant ground in the determination of whether purchases of trademarks as search engine keywords constitute use in commerce under the Lanham Act. The battle appears to be shifting toward the ultimate issue of whether consumers are likely to be confused by such use. This shift was recently emphasized in Medafor, Inc. v. Starch Medical, Inc., 2009 WL (D. Minn. July 16, 2009), where the court dismissed the plaintiff s trademark-related claims, but granted the plaintiff leave to amend to indicate how the public would likely be confused by metadata terms appearing on the defendant s website. Moreover, Google continues to be a significant force in this area. Google s programs raise numerous obstacles to trademark owners trying to stop competitors from marketing on the goodwill and reputation of the trademark owner s strong names. In short, this area of trademark law will continue to develop in the near future. 173

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