Search Engine Companies May Be Liable Under The Lanham Act And The Initial Interest Confusion Theory

The Lanham Act is the applicable trademark law in the United States (15 USC) and it is similar to most developed countries’ trademark laws (they mostly followed the World Intellectual Property Organization – Wipo- rules). The Initial Interest Confusion Theory was first used in the Internet context in Brookfield Communications, Inc. v. West Coast Entertainment (Brookfield). There, the Court of Appeals considered that diverting consumers’ initial interest in a specific company’s product through the use of trademarked terms in Meta tags may create confusion actionable under the Lanham Act. After Brookfield application of the initial interest confusion theory in Internet grounds, Playboy Enterprises, Inc. v. Netscape Communications Corp. (Playboy) came to complement the issue of liability for the use of trademarked terms. Yet, this time the liability was held to exist on the search engine company as opposed to the advertisers’ company. Playboy ruling makes a search engine either directly or contributory liable for the use of trademarked terms in the search engine keying practices. How did the Court reach this conclusion? What is keying? Are there limits to the liability of a search engine accused of trademarked infringement through its keying practices? What could search engine companies assert as defense for this liability? These questions may have some answer in the Playboy case analyzed in this summary.

The following questions have been addressed in this article:

What is Keying?
Under what Legal Theory did the Court Found the Defendant Search Engine Liable in the Playboy case?
How did the Ninth Circuit Court of Appeals in Playboy determine the Likelihood of Confusion?
Is there any Defenses for Search Engine Companies Facing Liability for Trademark Infringement?

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