Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The Internet has made our lives easier in many ways. But how it has affected the task of keeping on top of trademark infringers is definitely not one. Before the Internet, policing a trademark generally was a straightforward job. You needed to be on the lookout for infringers using your marks in advertising in a limited number of media outlets, and to take action when infringement was discovered. But the Internet has created new infringement problems. Search engines like Google have begun selling advertising linked to trademarks. This is called keyword trafficking. Advertisers who want to steer traffic toward their sites are scrambling to acquire keywords. Keyword trafficking works like this: When you search for a word or phrase on a search engine like Google, you receive results that, in addition to listing the top-ranking Web sites for your search, also list “sponsored links.” The sponsored links that appear depend on whether you have searched for keywords that the advertisers have purchased. When a visitor launches a search containing one of advertiser’s keywords, it causes the advertiser’s sponsored link to appear on the results page. Advertisers who buy keywords pay Google and other search engine companies per ad view, or “click-through.” Sponsored links on Google can cost as little as 10 cents per click-through. Such links are a major advertising revenue generator for Google. Google also sells a lot of keywords that are generic terms. For example, banks may buy the keyword “mortgage.” Search for “mortgage” on Google and you get a selection of mortgage lenders. In a case filed in U.S. District Court in New York in January, Plymouth, Mich.-based American Blind and Wallpaper Factory Inc. sued Google for trademark infringement. It contends that Google, based in Mountain View, Calif., sold American Blind’s trademarks as keywords to its competitors. According to the complaint, Web users who type “American Blind” into the Google search engine receive a page containing links to American Blind’s competitors. This new type of trademark infringement is tougher to detect than the old types. Unless you are actively policing a search engine’s use of your marks for keyword advertising, you might never know that Internet consumers were being directed to your competitors when they typed in your brand or trademarks. Selling keywords raises a whole host of questions about possible unfair practices. For example, unauthorized distributors or sellers of counterfeit products could drive customers to their Web sites by purchasing your trademarks as keywords. Manufacturers and sellers of competitive products could drive potential customers to their sites by making unfair comparisons to your product in keyword-linked advertising. The selling of keywords by Google is particularly controversial because Google has become the de facto standard for Internet searching. More than 200 million searches a day are executed on Google. If your trademark is searched even a few times a day, and your competitors have bought a keyword containing your trademark, the result could be a lot of misdirected Internet customers and, thus, lost sales. American Blind chose the tactic of suing Google directly. It remains to be seen how successful that strategy will be. Alternatively, American Blind could also sue the competitors who are buying keywords with its marks in them. Another possible response would be for a company to play the keyword gaming system itself. It could buy its own keywords from Google. Or, in a different approach, it could take steps to increase its “page rank” so that its own Web site ranks highest in response to a search for its trademarks. “Page rank” refers to the way Google assigns priority to Web search rankings. According to Google, if your Web page is linked to more pages than my Web page, yours will rank higher on Google in response to a search for a term that appears on both of our pages. To Google, page rank is an indicator of Web page’s relevance. The way Google sees it, the more pages that link to another page, the more people think your page is deserving of attention and, therefore, the more credence Google should give your page in search results. But improving your page rank can take time. Other sites have to add links to your site before your standing on Google increases. It’s not surprising, then, that Web site operators looking for ways to increase their Google page ranking figured out they could do so by buying links on other sites. But there are a number Web sites out there. So companies like SearchKing.com emerged to create networks of sites that buy and sell links on each others’ sites. These links increase a site’s Google page rank and thus make it more valuable. What did Google do in response to this roundabout way of paying for placement in search engine results? Google responded by effectively shutting down SearchKing.com. At least that’s what SearchKing.com claims in the interference with business relations lawsuit it filed against Google in U.S. District Court in Oklahoma City. Such is the power of Google. These days, if you want to protect your trademark, you need to dig a little deeper and search some keywords. No one said competing on the Internet was going to be easy. Joel B. Rothman is a technology lawyer and partner in West Palm Beach’s Gilbert & Rothman. Rothman can be reached at [email protected]. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.