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Does the Power of the Internet Justify Changing Traditional Rules for Trademark Infringement?

By Anthony Handal of Thompson Hine LLP

Anthony H. Handal is a partner in the New York office of Thompson Hine and has specialized in intellectual property litigation for the past thirty years.  He has appeared as lead counsel in two hundred cases before the district and appellate courts.  He has taught the litigation portion of the patent strategy course offered by the Patent Resources Group and lectured on various patent law topics before the New York Intellectual Property Law Association. He may be reached at</ p>

A circuit split, coupled with even greater diversity of treatment at the district court level, continues to plague counsel in advising clients on the implications of the use of trademarks of competitors to build website traffic. At stake are the competing interests of encouraging competition and protecting the goodwill of established brands.

The controversy centers on the use of a competitor’s trademark both 1) as metadata in a website, where. even though it is not visible to the user, it will be found by search engines, such as Google, and result in the website being listed in the search results, and 2) as a key word, typically sold by the search engine operator to the trademark proprietor’s competitor, whose advertisements then appear as a so-called "pop up" or "banner" ad next to the search re...

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