Searching for Clarity in Trademark Disputes in Online Realm

The Internet is a uniquely global medium. Trademark law is local. And applying the latter to the former is often a struggle. That’s been the case with keyword advertising, the search engine practice, most famously employed by Google Inc., of selling ads that are tied to a particular word or phrase. Since 2003, the practice has been challenged in at least 15 litigations in the United States, Germany and France. Courts have struggled to apply established trademark principles to a novel cyberspace activity that has no precise equivalent in the brick-and-mortar world.

A keyword advertisement is an ad that is tied, or keyed, to a particular word or phrase searched for by a search engine user. Search for “cheap airline tickets,” and ads tied to that term — for travel sites, typically — are displayed alongside the listed search results. Keywords can be generic — sneakers — or they can be distinctive trademarks — Air Jordans. Ads for music Web sites may be triggered by a search for “Motown,” for example.