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Keywords And Metatags Don't Infringe Trademarks

In a recent blog post, law professor Eric Goldman noted that a ruling in J.G. Wentworth SSC Ltd v. Settlement Funding LLC reinforces other judicial opinions that using trademarked terms as keywords and metatags does not constitute a trademark violation. The plaintiff in the case, J.G. Wentworth, a financial trading company, alleged that Settlement Funding, a competing company, bought the keyword ad terms "J.G. Wentworth" and "JG Wentworth" in Google's AdWords program and used the terms in metatags embedded in its Web pages. It alleged the defendant's actions constituted a trademark violation. The court thought otherwise.

"Even though this case didn't quite fit the pattern, this is a big win for advertisers," Goldman says on his blog. "The court holds that, as a matter of law, the use of keyword-triggered ads and keyword metatags cannot confuse consumers if the resulting ads/search results don't display the plaintiff's trademarks. Given the inconsistencies of past rulings, I simply don't believe that this case will be the final word on the matter. However, if other courts follow this conclusion, we would see a reduction in the quantity of silly litigation over keyword advertising and keyword metatags."

What's interesting about this is that while the court found that people aren't likely to be confused by a competitor's use of a trademark as a keyword ad trigger and metatag, consumer confusion isn't the only issue.

What about machine confusion? Is it acceptable to manipulate machines to obtain a desired result online, such as getting one's ad to show up when someone has explicitly search for one's competitor?

With so much of the information we receive mediated by computers, we need to look more carefully at how computer systems can be gamed. Using other people's trademarks as search keywords may not be illegal, but it's not clear to me that it's entirely ethical, either.

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