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Developments in keyword advertising

01-06-2011

Robert Kenney and Katie Peden

US courts have not yet found the sale of trademarks as search engine keywords by Google and related Internet search engines to infringe on those marks.

However, the case law in connection with the purchase of trademarks as keywords by competitors continues to evolve. Recent case law from the 9th Circuit offers some clarification of the relevant factors to be considered in these cases, but provides conflicting results.

Most recently, on March 8, the 9th Circuit overturned a preliminary injunction prohibiting the purchase of a competitor’s trademark as a keyword issued by the District Court for the Central District of California in Network Automation, Inc. v Advanced Systems Concepts, Inc.

Both Network Automation and Advanced Systems sell job scheduling and management software and advertise on the Internet. Network Automation purchased the ‘ActiveBatch’ trademark of Advanced Systems as a keyword on search engines, including Google AdWords and Microsoft Bing. Following a cease and desist demand from Advanced Systems, it brought this action for declaratory judgment of non-infringement. Advanced Systems filed counterclaims for infringement under the Lanham Act.


keywords, search engines

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