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<b><i>Commentary:</b></i> Trademarked Keywords Become Legitimate PPC Targets
In the Oct. 2009 edition of Internet Law & Strategy, I wrote about Rescuecom Corp. v. Google Inc. (see, “The PPC Trademark Battle Continues”; www.ljnonline.com/issues/ljn_internetlaw/7_10/news/152832-1.html), in which Rescuecom, a computer-support company, complained that Google was recommending and selling the keyword rescuecom to competing pay-per-click (“PPC”) advertisers to be used as a trigger for their PPC ads. At that time, the Second Circuit ruled that Google's use of keywords constituted a “use in commerce,” and thus Rescuecom was able to continue its suit. So it seemed that the concept of using keywords to trigger PPC ads would get its day in court. It didn't quite work out that way.
In fact, since 2009, the legal landscape relating to PPC keyword triggers has continued to evolve, with a number of events that will please those of us who believe that the use of a trademarked term to trigger a PPC ad is not inherently a trademark infringement.
First (and certainly most amusing), Rescuecom found itself in a battle with Best Buy for using the keywords geek squad to trigger its own PPC ads, in effect doing exactly what it complained that its competitors had been doing ' using a trademarked term to trigger ads. Best Buy (BBY Solutions, Inc.) had demanded that Rescuecom stop, so Rescuecom quickly sought a declaratory judgment that its use of the keywords was valid. Ironically, Rescuecom argued that the use of the keywords not only as a trigger, but also within the ad text itself, strengthened its case, not weakened it as many might at first assume. The text, “Leave the geeks,” argued Rescuecom's CEO, left no doubt that Rescuecom was a competitor to Geek Squad. (I believe he's correct, but it's still fun watching people scramble to explain away contradictory positions.)
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