Looking Beyond 'Use' in Predicting Advertiser Liability for Using Competitors' Marks in Online Advertising

摘要

Internet search providers like Google and Yahoo derive significant revenue from the sale of advertisements linked to user searches. A search for the term "kittens," for example, will return a list of search results related to kittens but will also display a list of paid kitten-related sponsored links from advertisers that have paid the search provider to display their advertisements. Google's AdWords system is the biggest seller of paid advertisements, with more than $10 billion in revenue in 2006. The choice of which terms to link to an advertisement is up to the advertiser, although both Google and Yahoo provide a service that predicts what terms will yield the most hits on a sponsored link. Not surprisingly, some of the most effective search terms are often trademarked product names. A prospective new car purchaser might well search the term "Toyota," while a music lover might search "iPod." It is perfectly acceptable, and likely effective marketing, for the owner of a trademarked term to sponsor a link to its Web site when that term is searched, but questions of trademark infringement arise when an advertiser pays for a link to a rival's term. Such activity is common in online advertising. Google searches conducted on October 31, 2007, for "Toyota" and "Honda," for example, generated sponsored links for Chevrolet. Similarly, a search for "panda," which is, among other things, the registered trademark of the eponymous manufacturer of a popular computer security application, generated sponsored links for Zone Alarm, a competing software package.