The most frequent response to my question about what online law issues our readers are most concerned about centered on the still undetermined law around the use of trademarks as to trigger advertising in search engines. The issue is both prominent and vexingly permanent in the minds of both IP layers and and search marketers.
Keyword advertising: Should there be trademark fair use to promote efficient speech?
The question of triggering search advertising by the use of trademark in the search query has been litigated for over ten years now. It took us until 2009 to finally get a jury opinion, in Fair Isaac v. Experian.
The jury found for the defense that the keyword-triggered ads did not create a likelihood of consumer confusion. Unfortunately there have been contradictory bench rulings, so this settles nothing. This is a huge problem.
For law to be effective it must be comprehended, and enforcement must be predictable. This corner of trademark law has is neither. Witness the case, or should I say cases, of Rescuecom v. Nearly Everyone. On one hand they are suing Google for a competitor having ads triggered when visitors search on their trademark. At the same time they are defending themselves on the identical charge claiming fair use. They want it both ways, which is how the courts are serving up rulings. This mutes the effect of the law, making IP Law more a game of chance than a function of justice.
The Free Speech Issue That Illustrates Public Interest
As a blogger who has worked for news organizations, I can point out numerous ways that protecting brand terms from keyword advertising stifles legitimate public dialog. Newspapers use brand terms to share vital news with consumers, as do advocates such as unions to speak about brandholders. Though these uses are free of any “use in commerce”, many trademarks are outright blocked by search engines who restrict the use of brand terms by anyone but their owners.
Eastern courts tend to rule for speech, Western ones for marks. And so the song that never ends enters 2010.