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In order to avoid liability for trademark infringement relating to the sale of keywords corresponding to trademarks, search engines, including Google Inc., are attacking the concept that trademark owners should be able to protect the “commercial magnetism” of their marks. Recently, in Rescue.com v. Google, No. 5:04-CV-1056 (N.D.N.Y.), Google argued that trademark laws “are not meant to protect consumer good will created through extensive, skillful, and costly advertising.” Reply Brief at 4 n.4 (citing Smith v. Chanel Inc., 402 F.2d 562, 566 (9th Cir. 1968)).

At issue in Rescue.com is the current business practice of allowing advertisers to purchase particular search terms to generate what are typically labeled as “sponsored links.” Rescue.com alleged Google infringed its trademark by allowing and advising a competitor to buy Rescue.com’s trademark as a keyword, thereby causing confusion as to whether Rescue.com’s competitor was affiliated with it. Google asserts that its conduct does not involve “trademark use” and is therefore beyond the reach of the Lanham Act.

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