The battle over whether search engines can allow third parties to bid on and use keywords incorporating the trademarks of third parties has heated up once again, as blogged about at the Technology & Marketing Law Blog here. American Airlines has filed a trademark infringement lawsuit against Yahoo and Overture d/b/a Yahoo! Search Marketing over its handling of keywords. The counts include Lanham Act claims of trademark infringement, contributory trademark infringement, vicarious trademark infringement, false representation, dilution, equivalent Texas state law claims, and tortuous interference with contract.
Recall that American Airlines filed a similar suit against Google in the past, which eventually settled without resolving this uncertain area of law. As discussed by Traverse Legal, PLC Attorney Brian A. Hall here, keyword infringement is an unsettled area of law with regard to not only those who bid on keywords and use them for online advertising but also for the search engine providers who allow such a practice. That said, a trademark owner must monitor the use of its trademarks in online keyword advertisements. Traverse Legal, PLC has services available to handle this monitoring and has handled such unauthorized use of one’s trademarks in online keyword advertisements by search engines and third parties. A trademark owner must proactively protect against the unauthorized use of its trademark or risk losing rights. Understanding the search engine’s Complaint Procedures, how to identify and contact the owner of the online advertisement, and understanding which trademarks are entitled to protection are the most important considerations.