Intellectual Property Law

Second Circuit: Google Keyword Ad Practices Are ?Use in Commerce?

By Lee.Gesmer

A few days ago I discussed a decision by Massachusetts U.S. District Court Judge Nancy Gerrner holding that purchase of a trademarked keyword to trigger a sponsored link on a search engine is a ?use? of the trademark.  (Earlier post here).  In that post I mentioned that only the Second Circuit had held otherwise.

Now the Second Circuit seems to have changed its position on this issue.  In Rescuecom v. Google, issued on Aprl 3, 2009, the court reversed a motion to dismiss by the trial court, holding that Rescuecom properly alleged that Google’s keyword ad practices constituted a “use in commerce” under the Lanham Act (the federal trademark statute).

The opinion includes an Appendix entitled “On the Meaning of “Use in Commerce” in Sections 32 and 43 of the Lanham Act.”  The Appendix, which is identified as dicta, discusses at some length the statutory history of the “use in commerce” phrase in the Lanham Act.

Full post as published by Mass Law Blog on April 06, 2009 (boomark / email).