WaywardSean

Much of the writing this subject naturally focuses of those intersections of trademark law and search engines that have been fleshed out by case law. The majority of these search engine litigation cases involved companies displeased that their trademarks are being sold as triggers for advertisements that appear alongside search engine results and at being equally displeased with their competitors who buy their trademarks for this purpose. Unfortunately these types of scenarios are almost the sole preoccupation of those looks at this area of the law (well those and some very interesting cases about search results as first amendment speech), a focus which leaves my interest, both professional and personal, in trademark law and search results largely untouched.

Just looking at those types of AdWord cases then I am in complete agreement with those like Professor Eric Goldman who feel call from a less robust role for trademarks law in internet search results. (Goldman’s blog is a great spot for keeping up with the latest AdWord filings.) The Brookfield doctrine is a disaster, the type of ruling that can only come from those with little familiarity with the internet. It is my hope that greater adoption will come of using the “use in commerce” clause as a gatekeeper as in Rescuecom and as in the GEICO case requiring more of an actually showing of consumer confusion than just the possibility of consumer confusion.

This inquiry is fairly tame and does not fully map trademarks law’s entwined future with search engines. Searching for a well known French fashion house along with “replica” yields a sidebar full of AdWord advertisements, one with the tagline “Need cheap but nice Replica?” In addition to this sidebar full of ads that were sold under the third organic search result there is a link (with picture of a handbag) to go to Google’s shopping results, listing off the counterfeit products. Even before you get to the search results Google’s new search suggestion feature helpfully offers “replica luggage,” “replica shoes,” and so on. This concerns me, and maybe should concern Google if someone wanted to pick a fight over it.