David A. Hyman & David J. Franklyn
92 Texas L. Rev. 2117
Most Internet searches result in unpaid (organic or algorithmic) results, and paid ads. The specific ads that are displayed are dictated by the user’s search terms (“keywords”). In 2004, Google began offering trademarks for use as keywords on an unrestricted basis, followed in due course by other search engines. Once that happened, any entity (including sellers of competing products) could have their ads appear in response to a search for the trademarked product. Trademark owners responded by filing more than 100 lawsuits in the United States and Europe, making the dispute the hottest controversy in the history of trademark law. Litigation has focused on purchases by competitors—giving the impression that competitors account for a large portion of such purchases. In this article, Professors Hyman and Franklyn present data showing that competitors account for a relatively small percentage of keyword purchases, and many trademark owners purchase their own marks as keywords. They also find a high degree of fluctuation in the number of paid ads and the domain names to which those ads are linked. They conclude that the risk of widespread abuse is low. Trademark owners’ objections seem to have more to do with objections to free riding than with the zone of interests currently protected by U.S. trademark law.