OIL Casebook: Keyword Advertising | mrisch | July 12, 2014

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OIL Casebook: Keyword Advertising

by mrisch Show/Hide

This section considers a more modern trademark dispute: when search terms include trademarks and point consumers away from the trademark owner's site.

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  1. 1 Show/Hide More Brookfield Communications v. West Coast Entertainment - Initial Interest Confusion
    Original Creator: mrisch

    This case is widely considered the birth of the initial interest confusion doctrine as applied to the internet. We will see how application of this case evolves. For example, are metatags important anymore?

    This case also includes a first introduction to fair use – the ability to use trademarked terms in a descriptive way. This will be revisited in other cases.

    Recall the basic facts: West Coast used moviebuff.com, though Brookfield had registered MOVIEBUFF (one word) as a trademark. Earlier in the opinion, the court determined that West Coast would be enjoined from using moviebuff.com. This section considers the use of “moviebuff” on the website in a way that brought search engines to West Coast's web site, rather than Brookfield's.

  2. 2 Show/Hide More Rescuecom Corp. v. Google Inc.
    Original Creator: mrisch

    This case introduces initial interest confusion at a basic level: is using a search term even the use of a trademark?

  3. 3 Show/Hide More Playboy Enterprises v. Netscape Communications
    Original Creator: mrisch

    This case is a straightforward application of initial interest confusion, but with keywords rather than metatags.

    The case also introduces a new defense: nominative use. Like fair use in Brookfield, this will be explored in later cases.

    Perhaps most important, the concurrence in this case shows a beginning challenge to initial interest confusion that continues in future cases.

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July 12, 2014

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mrisch

Professor of Law

Villanova University School of Law

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