Law Commons^™

Trademarks As Search-Engine Keywords: Who, What, When, David Franklyn, David A. Hyman

Publications

Most Internet searches result in unpaid (organic or algorithmic) results, and paid ads. The specific ads that are displayed are dictated by the user's search terms ("keywords"). In 2004, Google began offering trademarks for use as keywords on an unrestricted basis, followed in due course by other search engines. Once that happened, any entity (including sellers of competing products) could have their ads appear in response to a search for the trademarked product. Trademark owners responded by filing more than 100 lawsuits in the United States and Europe, making the dispute the hottest controversy in the history of trademark law. …

Trademark Surveys: An Undulating Path, David Franklyn, Shari Seidman Diamond

Publications

When a plaintiff alleges trademark infringement or claims that false advertising is likely to confuse or deceive, the pivotal legal question is: how are consumers likely to perceive the mark or advertising? In the early days of trademark litigation, a parade of consumer witnesses, carefully selected by one of the parties to support a trademark claim, would testify about their reactions to a mark. That approach has given way to systematic survey evidence reflecting the responses of a substantial number of consumers selected according to an explicit sampling plan, asked the same questions, and unaware who sponsored the survey.

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