Eric Goldman reports factually on the latest trademark infringement case, ruled on by a court in Eastern Pennsylvania:
"The court holds that, as a matter of law, the use of keyword-triggered ads and keyword metatags cannot confuse consumers if the resulting ads/search results don't display the plaintiff's trademarks."
So if the keywords in your Google AdWords or Yahoo SM account -- or the keyword meta tags in the headers of your HTML pages, for that matter -- aren't intentional attempt to "dupe" and trade on someone else's trademark for a use in commerce, then what are they, exactly?
As I've argued all along: they're cues to relevancy, a way of getting relevant consumers to consider your offer. If you owned clickstream data, as all of the major website properties (Google, Microsoft, Yahoo) do, you'd already have a very good idea of which consumers had, in the past, visited (say) the BMW site, or searched for "BMW". If you knew this, you could show them your ads at a later time in their surfing travels. Is that legal? As long as the privacy policies are disclosed, it sure is. It's called "targeting." What if you don't own that clickstream data? Shouldn't you be allowed to benefit from the same phenomenon, by participating in a system that works similarly?
It's nice to see that the court understood the difference between passing your business off as another business, and using legitimate means of optimizing ad campaigns (or web content) to maximize the chances that your target customers, searching and navigating of their own accord, might come across your offer.
Posted by Andrew Goodman
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