Keyword advertisement

Keyword advertisement

Laws regarding trademarks are put in place to ensure users are consuming goods and services whose origin is accurately indicated. Thus, it prohibits other people in the marketplace from deploying the use of equally similar marks to confuse consumers. Trademarks, therefore, ensure that competition is upheld in the market place while seeking to produce quality and sometimes high-end products that will satisfy the needs of the consumers (Barrett, 2008; Legal Information Institute, n.d.). At long last, this paper will be insightful on the rights of trademark owners and how a consumer may affect or not affect them. In light of that, this research paper seeks to demonstrate that the sale of trademarked keywords does not infringe on a trademark owner right through analysis of trademark and advertising on the internet. Primary sources, secondary sources, and legal cases will back up information in the entire of this research to realize the thesis of the paper.

Keyword advertisement arises on instances when a search engine platform offers a third party an opportunity to purchase a trademark that it does not own. Therefore, when a consumer or someone searches a product using the trademark, the person can view the product or the services from the third party that ‘bought’ the trademark. In instances when the third party is a competitor of the legal trademark, issues may arise such that if the use of the trademark in commerce or whether the use of such keywords is a trademark infringement. For the cases that have been put forward in the previous cases, none has reached the consensus as to whether keyword advertising and trademark is legally permissible.

In 2016, an administrative complaint was filed by FTC, the largest online retailer of contact lens in the U.S. over bidding competition among other similar companies. The result hindered 1-800 contact competitors from participating in the trademark in keyword advertisements. The allegations would deter consumers and search engines from irrelevant and misleading ads. A pre-trial brief indicated that the use of keywords doesn’t necessarily constitute an infringement of trademarks as per the Lanham Act. What the trends show, is that trademark owners are keen to prevent any form of similar trademarks that may incur competition in their goods and services (Smith, 2017), as this will lead to a rise of very stiff competition and thus robbing them of their customers.

Many of the search engines operate in such a manner that allows advertisers to bid on search terms and or keywords that are relevant to the customers’ needs. Search advertising is essential in that it prioritizes an advertiser’s advertisement to a consumer indicating o him or her that the particular product meets their needs. However, some search keywords are trademarked, and for this case, the owners have sued allegations for the search engines and buyers who have attempted to use their keyword trademarks for advertising purposes. The owners of the keyword trademarks have alleged that the use of their keywords is likely to confuse the customers or shift the consumer’s intent to the other companies (Dinwoodie & Janis, 2008).

Most of the cases, the courts have addressed that the act of buying another party’s trademark for advertisement has been considered to be commerce. The first, seventh, ninth and eleventh circuits of the of Calder affirm that “ intentional acts committed outside jurisdiction can confer jurisdiction if the effects of those acts were intended to be felt inside that jurisdiction, is appropriate to determine whether jurisdiction over a tortfeasor  who has no other contact with the forum is appropriate.” For trademark infringements that are considered as intentional torts, minor cases may create significant connections that may require support by the jurisdiction. In a society where a lot of commerce is made over the websites, then it is easier to engage in electronic transactions that include real-time help from sales personnel. Thus, in many internet scenarios, it becomes controversial to ascertain whether the defendant, through the website, is to be charged for engaging with the forum states while providing sufficient logic reasons. In one such case for a company in Missouri, it was diffucut to ascertain whether the other party had engaged in trademark infringement after it used ticketing information with a similarity of names and addresses to be picked from blue note club that was similar to another blue toe club. The defendant was able to dismiss the plaintiff, given that there were no personal supporting jurisdictions. The court upheld that advertising via the internet was just one of the ways the company used the internet to gin satisfaction, and only gain long term jurisdiction (Brookman, 1999).

Currently, when we limit trademark rights, then it means that trademarks are going to be tied to their cost rationale, and only the use is to be of concern to the trademark law. Therefore, limiting cases that may arise through the individuals or companies that use such marks to portray some sort of affiliations, between themselves and the actual trademark holder, then it gives freedom to any related producer or company to carry out their business generally without having to investigate the businesses with other companies or individuals in whom they relate in terms of their products and services (Dinwoodie & Janis, 2008. Pg. 81-82).

Functionality, which is one of the theories and laws of trademark, states that it is not for a specific company or individual to claim ownership over a trademark in any product feature. The theory only supports ambiguity in cases where there is mimicry in product configuration and packaging. Although consumers come to associate a certain product with a specific seller, the customers don’t need to associate the product or the service with that particular trademark, as long as it does not position the owners of the trademark at a comprising position. TheU.S. supreme court ascertains that although consumers associate some products with certain trademarks, the Lanham Act upholds that this does not deter other similar companies from copying the features of the company’s trademark if that is what will contribute to the prosperity of the company.

The functionality doctrines allow consumers to choose a product from any manufacturer eliminating the fact that a specific company is using a particular method to make sure it is at per with other companies. This condition over ownership of a trademark does not make sense. Let’s come to think of this if a manufacturing company claims the circular nature of wheels to be their trademark, which means that it would deter any emerging company from producing wheels that imitate the circular shape. If it is for aesthetic functionality, then it makes a lot of sense since this will make the product to be more desirable and not for reputation purposes, but because it is aesthetically pleasing. Therefore, even if a similar manufacturer copies the trademark of the first creator of the trademark, what will create a difference in the consumption of their goods, is the functionality that it will offer the consumer. Since most commodities are consumed based on their aesthetic nature, then, it is impossible to prevent a person who produces similar quality products from accessing the market because they are using a similar trademark (Dinwoodie & Janis, 2008, Pg. 90-91)

Although the owners of a trademark may claim the use of the keyword trademarks as an infringement. There have been no enough claims to sustain the infringements. Other previous cases that have been claimed due to the use of keywords have been solved to favor the owners of the trademark on any trials in the past. There has, however, been claims that the use of keywords advertising integrating with the use of trademarks may, for sure, cause confusion among the consumers of the products, (Smith, 2017).

Abandonment is another trademark law that asserts that as long as the rest of the advertisers use the trademark for commercial purposes, then there is no problem. In the case that the use of trademark ceases to be of commercial purposes, then, it is to be considered as abandoned. Thus, the abandonment rule will allow the public to use the trademark for its own profit and therefore prevent the company from ‘warehousing.’ Although, warehousing has a negative impact on consumers in the market, because, if a company has established goodwill in the market, the strength of the goodwill will persist even after the company has left the market place, the abandonment rule, therefore, allows the company owning the trademark to capitalize their goodwill in such a way that it confuses the minds of the consumers. In such a case, then the consumers get the time to orient their minds to know that the previous product is not associated with the mark since a new product is now operating under that trademark. However, that new product has to come from a similar line as that of the previous product. One such good example is the replacement of PAN NAM, an airline with FRONTIER with the use of DURAFLAME fire logos as their trademarks.

However, a majority of legal institutions avoid employing the law of abandonment in case the owner of the trademark has involuntary cessations except for the severe case. Although, if a company ceases involuntary, the legal institutions take into action with the help of the statutory framework, the trademark owners can practice abandonment for three years. The goodwill may proceed for the next preceding three years in cases where a company changes its name but continues in the same line of business. A good example is the company FedEx that changed its name from Federal express, and they continued in the use of the trademark since changing the name. The trademark to something else would cause more confusion to the consumers.

From above, we observe that the statutory framework has little to deal with the cost framework as it serves to increase the relevance in the consumers’ search costs. It brings concern and suggestion that the statue needs to be revised to include others such that they can retain the recognition of the brand’s old name even after the brand ceases to be in function.  What this signifies is that a specific mark will not to be of any individual or company’s ownership after the previous owner abandons it. However, ownership of the mark to the brand is credited to any company or brand as long as it does no possess confusion to the consumers (Dinwoodie & Janis, 2008 Pg. 93-94).

The summative, economist, argues that the goal for a free exchange of goods and services has been put in place to enable consumers to locate what they are looking for very fastly and most conveniently. It can be justified that there is logic in reducing a consumer’s search cost, and that is why the trademark law has been put in place. Thus, it shows the functional position of the trademarks law with the search cost; although it is to be in favor of the consumers, it is as well to control the trademark law. However, modification via the law has been put in place to ensure that trademark infringement does not violate the ownership of the trademark and that also it works in favor of the consumers (Dinwoodie & Janis, 2008).

The European trademark law has undergone several modifications to ensure harmony between the public consuming a product and the brand that offers that particular product. The European trademark has done law by stipulating the rights of the trademarks so clearly to avoid the arising of any controversy between either of the two parties; consumers or owners of the trademark. Based on the European trademark law, ownership of the trademark right has ownership over the one that first created it. With this right, he may exclude other parties from using the trademark or mimic the trademark in the promotion of goods and services that don’t belong to the first party. Therefore, this will bring a difference in the way the owner of the brand issues his products and services from how the rest of the companies operate. Thus, according to the European Trademark law, a trademark is not merely a sign but also a representation of the functionality of the brand to the public. So the law ascertains that the trademark will only be functional if it exclusively under use by a specific brand for its operations. Or a second party operates under that trademark in the consent of the first party. It, therefore, means that the trademark serves two primary purposes, first, is that it protects the company from the disruption that may arise from second parties and also protect the consumers from such disruptions (Jehoram, Nispen & Huydecoper, 2010 Pg. 6)

Under certain circumstances, it is permissible for the other companies to use keyword advertising and trademark. Under nominative use and descriptive use, then, trademark and keyword advertising may be put in use. Under nominative use, a third party may use the trademark signal of another country if referring to that company or its product and services. Thus, if you are making use of the trademark of the company in a truthful way without misleading the consumers as well as in the consent of the company, then the use of keyword advertisement is allowed. Mostly, nominative use keyword advertising is employed in comparative advertising or in cases where a brand is advertising what services it offers or products it is selling. Thus, the fact that the advertisement of the products is what is more important, then it is relevant for the third parties to engage in keyword advertising. Under descriptive trademark use, a third party puts in use keywords or marks that are already in use by other companies but don’t employ the use of it as a trademark. Descriptive trademark use is employed in most United Nation companies in its raw state than employ the use of those keywords as trademarks. Therefore. It is permissible to use a keyword but not as a trademark for commercial purposes as long as it does not bring confusion among the consumers (International Trademark Association, 2016).

In addition, resolving issues as to whether it is impermissible to use a trademark of another company for advertising purposes is challenging as the technology is ever dynamic, and this forces the search engines to evolve over time. The use of metatags that belong to another company in the U.S. is sometimes prohibited, and sometimes the use of the trademarks is justifiable. It is justifiable in the case when the use of the keyword is used is relative to the index of the website relative to the topic. Also, it is justifiable if the means is to identify the products that are offered through the website or accord the legitimacy of a website. Additionally, a third party is allowed to use the keywords if only it does not go against the rights of the owner of the trademark. For example, in Canada, many issues concerning the use of the keywords have been resolved in favor of the user rather than the initial owner of the keyword. However, there have been controversies that have been left open over the possibility of confusion over the consumers, confusion, and possibilities of passing over some information that may cause the trademark to gain favor from the consumers. However, the issue only becomes relevant where the third party is making use of the keywords as well as trademark of the owned company to promote its products and services that are in alignment with that of the owned company (International Trademark Association, 2016).

Aitken (2015) provides a comprehensive explanation over keyword advertisement and trademark infringement by Google as a search engine. In his article, he argues that Google will only be liable for infringement if it leads to confusion by the consumers following an advertisement offered by the platform. Due to the growing popularity of search engines in providing first online content to consumers regarding products and services, then internet searching has grown to be such a lucrative business. The search engines then have put in place advertisements to customers based on specific ‘ phrases’ which are keyword which they tune in a while performing a search. As a result, the trademark owners have long been in protest in law firms claiming infringements by search engines in providing their keywords unfairly and thus providing stiff competition to other companies that offer similar products or services. However, their complaints have not been resolved as the trademark laws only prohibit instances where the identity of the advertiser is hidden to create confusion among the consumers.

Regarding the standards of advertisement, to reach out to the consumer, the ad has to be set in such a way that the consumer is in a position that an interested consumer will be able to reach out to it quickly. One of those methods that have been put in place to ensure that a consumer gets to view a range of these products is the use of pop up advertisements, and these are based on the keywords that are entered onto those websites. Thus, those websites whose platforms have been used to create an advertisement of third parties have claimed this to be an infringement of their trademark rights, but based on the verdict given by the courts, then that can not be termed as an infringement. However, some legal institutions have left the issue unhandled as they seek to find more legal information to term that as infringement (Atiken, 2005).

In the same way, that advertisement has been linked to a particular website; it is similar way keywords have been related to advertising in the search engines to provide advertisement of the relevant ad to the consumer using the search engine. Therefore, anytime the user of the search engine enters the keywords, then several ads will be placed on the page, which relates to the product or searches that the person or the consumer entered. This is one particular and effective way that an advertiser can reach a consumer’s needs since the advertisements only appear when the consumer enters those keywords. In this case, like the case of an advertisement on the page of the owner of the website, it also brings a lot of issues to the owner of the trademark. It is also different in this case since the search using the keyword displays a lot of other brands other than a specific brand as the owner of the trademark would claim. This has raised a lot of issues, although many institutions have dismissed them, claiming that it is not any form of infringements (Atiken, 2005).

In the year 2004, google had denied linking up[ of advertisement to other websites, but recently, that law has been dismissed which has given advertisers a chance to have their ads linked with the keywords, even if those keywords bear resemblam]nce to a trademark owned by another brand, individual or company. To curb the issue, google ensured that there are no cases of use of unbridled trademarks to reduce cases that arise from the trademarks over the use of their keywords for the purposes of advertisements. Minor cases have, although, been occurring under incidences where some sponsors sponsor an ad. In this way, they end up using the keywords of the trademark and thereby creating stiff competition in which the owners of the trademark claim to be unfair competition. A good example is a request by eBay to exemplify all other searches that may be available to the advertisers. The practice has grown to be common as many trademarks are claiming omission in search of their keywords for the purpose of advertisement of other brands offering the same product or services (Atiken, 2005).

The primary issue that is there in online advertising is the issue of whether cases of confusion may arise because of advertisements that are created linked to those keywords. According to Brookfield’s case, the case was to test if the accused infringer used the complainant mark in such a manner that was worthy to warrant confusion in the eyes of the consumer or distract the consumer’s attention. Regarding keyword- linked search, it is mentioned that infringing advertisements are those that deter the consumer from differentiating the original company or brand from the rest, through offering a false depiction of the ads as being that of the actual holder of the trademark or hiding information regarding the source of the advertisement. Therefore, if there exists no uncertainty regarding the origin of the ads, then that is not considered as infringements, which may cause any confusion to the consumers (Atiken, 2005).

other factors may as well warrant a customer being confused, although it is not related to keyword linking. To avoid such confusion, similar advertisements under the same keywords may be put below or on a separate window on the advertising page, indicating that the ad is sponsored and does not belong to the trademark. This will help people searching through the web that the ad they have received is not part of their search results. Also, this has not served to bring confusion as most surveys have indicated that users always opt to close those advertisements that don’t pertain to the criteria of their search. These indications and strategies having been put in place reduce the possibilities of a consumer getting confused with the advertisement and shifting their attention to a product they did not intend to purchase (Atiken, 2005).

According to the trademark law, in Atiken’s (2005) article, he says confusion is in place to ascertain if a competitor’s use of a mark will warrant confusion. In dealing with issues regarding keyword linked advertising, chances are very minimal that a consumer may get confused over the brand he or she wishes to purchases a product or service or the source from which the goods from the advertisements come from. In cases where a consumer may get confused and instead redirected to the competitor’s page, that will be discovered so quickly. By aids provided by the search engine, the consumer can trace back the original site of interest. The Lanham Act has also been put in place to protect rights over ownership of a trademark, from a competition that may arise to put their products in competition from third parties (Atiken, 2005).

Summative, it is right to conclude that there are no infringements when a third party makes use of keyword-linked and trademark advertisements in the promotion of their products as long as that doesn’t create confusion among the consumers and is not used to diminish the presence of the brand owning the trademark. The issues on infringements can be viewed as the companies seeking monopoly in their operations, thus hindering the rest of the companies from operating. From what we have discovered as outlined in this research paper, Lanham’s act does not prohibit the use of a trademark in the nominative and descriptive advertising. Therefore. The act supports that the use of keyword linked and trademark for advertisement, is not an infringement. The trademark linked advertisements by some search engines like google have, however not been resolved, especially where the source of the ad is concealed.