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Ruling Against Contextual Ads Helps to Codify Trademark Use in Commerce
Contextual advertising ' advertising placed where it will be seen by consumers looking for competitors' products ' is everywhere:
- Supermarket coupons strategically placed near shelves stocking competitive products;
- Yellow-pages ads published next to rivals' listings; and
- One company's billboards appearing near a competitor's store.
Contextual advertising is particularly significant on the Internet because the ability to display advertisements or Web-site links when consumers search for particular terms gives advertisers a powerful tool for targeting consumers, and provides a critical source of revenue for Internet search engines.
While contextual advertising is well accepted in bricks-and-mortar businesses and in traditional publications, it is controversial on the Internet. Courts have not worked out whether (and if so, how) an advertiser may use a competitor's trademark to trigger banner ads or sponsored links displayed along with search results. A recent U.S. Court of Appeals for the Second Circuit decision, Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009), confirms a trend favoring trademark holders at the expense of maximally effective contextual advertising. Rescuecom held that Google's practice of selling trademarked terms as keywords to trigger advertising accompanying search results is a “use in commerce” of the trademarks ' a necessary element of a claim under the Lanham Act (“the Act”) ' even though the trademarks themselves do not appear in the advertising consumers see.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.