ADWORDS AND TRADEMARK LINKING UPDATE

"Where keyword placement of . . . advertising is being sold, the portals and search engines are taking advantage of the drawing power and goodwill of these famous marks." McCarthy on Trademarks & Unfair Competition § 25:70.1 (2004). Presently, the ultimate determination of liability remains unclear. In early 2005, Google faced potential liability for facilitating trademark infringement. Its "Adwords" program charged a fee to attach unaffiliated advertisements for competitor products to the results of searches incorporating trademarked words or terms. GEICO v Google (E.D. Va. 2005).The case later settled. More recently, Office Depot initiated a trademark infringement action against competitor Staples who purchased the keyword "VIKING". Viking Office Products is a subsidiary of Office Depot. In part, these cases focus on the theory of Initial Interest Confusion, a doctrine permitting a finding of infringement in circumstances involving only temporary confusion and where any confusion is dispelled before a purchase is actually made. What does appear to be settled is that no sale need actually take place for a trademark owner to incur actionable harm. The Internet user will have reached the site because of the defendants' use of another’s trademark and such commercial use can be actionable. Playboy v. Netscape Communications (9^th Cir, 2004).