Trademark: The Next Generation

It’s a crazy mixed-up world out there. We stand on the precipice of disaster in regulating just about everything that can or will be controlled. We live in a litigious society that demands and confuses satisfaction with justice.

Not a week goes by where I’m not asked to be an expert witness in some case against an advertiser, a search engine, or some combination of both. We know from the class-action moneymaking scenarios of years past that everyone except the lawyers lose in trademark class-action litigation.

Last week’s Second Circuit Court ruling in the case of Rescuecom Corp. v. Google turned my head a bit when I first saw it, particularly because of a few notable items we haven’t seen before in trademark litigation.

Lanham Introspective

When President Harry Truman signed the Lanham Act into law in 1946, I’m fairly certain he wasn’t thinking about Google and advanced algorithmic decision-making processes that lead to search engine advertising. I’m sure lawmakers at the time weren’t thinking about new millennium keyword suggestion tools either.

Today, we’re thinking of keyword suggestion tools and the nature of search advertising as it applies to protection offered by case law and the Lanham Act. Trademark litigation is very much a part of our lives in the interactive marketing world. Whether we like it or not, Big Brother will knock down our doors more often as the world begins to recover from the economic insanity we’ve seen in the recent past.

To date, we’ve seen everyday brands like American Airlines and Louis Vuitton sue search sites over the use of trademarks in search results. However, this is the first time I’ve seen a keyword suggestion tool called out so vigorously.

Internal Tools

Keyword suggestion tools serve all manner of good and evil. They provide helpful recommendations for search advertising. They can also suggest terms that may belong to other people. Therein, we look for terms that belong to others and hope to remove them before any confusion can be created by search listings.

Of course, that’s also where the black and white of law turns to a hazy shade of gray.

It would seem that advertising on one another’s branded — and protected — search terms would be a matter for the advertisers to discuss among themselves. If that discussion can’t be resolved, there would appear to be legal ramifications.

If I’m reading and interpreting the latest round of keyword and trademark litigation correctly, there’s an assertion that the keyword suggestion tool establishes the groundwork for keyword hijacking.

If that’s the case, I’m not sure the keyword suggestion tool is the accelerant fueling this particular chemical reaction.

Assigned Culpability

There’s no end to the work for attorneys, representative experts, and courts as it relates to search and trademark litigation. The larger issue is the door that we inherently open when we can’t seem to learn from our mistakes.

We’re now asking companies to be accountable for what paid bloggers say about their products if untrue. While some would argue the two issues are decidedly separate, I believe the many of the issues we now face with regulation by and from the virtual parent figure we call big government are connected.

We the people, have created a monster. We aren’t smart enough to avoid financial temptation. We aren’t bright enough to determine right and wrong when doing business. When left to our own devices, disaster has become the norm.

Get ready, it’s going to be a bumpy ride. But don’t worry. Someone will be there to tell us when and how to buckle up.

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