We can only expect this issue to be brought before the courts more and more, which might mean it is eventually decided by much higher courts: Does targeting your competitor’s trademark keyword in search ads constitute “use in commerce,” and thus a trademark violation.
The issue has come up time and time again from some high-profile companies in various states and in various courts. Most of the time, the courts have answered with bidding on a competitor’s keyword does not violate trademark laws and is not considered “use in commerce.” But a few other times, the courts have decided differently.
The latest comes from a Kentucky court, reports Technology and Marketing Law Blog writer/law professor Eric Goldman, where though it’s not a final ruling, the motion by the court suggests they will at least consider it.
There are other elements to the feud between a golf-course-drainage company and a former employee who left to start his own company, but in this instance, the court listened to two sets of precedents regarding keywords as use in commerce when deciding on whether to grant the defendant’s motion to dismiss.
The court chose not to dismiss the trademark violation claim due to “the uncertain state of the law” and that the plaintiffs had presented a good enough case “state a claim to relief that is plausible on its face.”
Goldman called the ruling “a thinly reasoned opinion with meager facts,” but whatever the outcome, it will add to the growing number of cases addressing the issue without real resolution for the greater body of search marketers.
